On Wednesday, the Centre's top law officer Mukul Rohatgi's arguments counter to the supporters of triple talaq made similar points.
Earlier in the morning, the bench asked the All India Muslim Personal Law Board if it was possible to give the woman the option, before she gives her consent to nikaah, that the marriage she was entering into would not be dissolved through instant triple talaq.
The All India Muslim Personal Law Board (AIMPLB), which favours the practice, also equated triple talaq with the Hindu belief that Lord Rama was born at Ayodhya. A five-judge Constitution bench headed by Chief Justice J.S. Khehar also said if all Qazis can be asked to include this condition at the time of marriage.
While seeking response from former Union Minister and senior advocate Kapil Sibal, representing AIMPLB, the bench said, "Don't infer anything from our side". In an obvious comparison to the steps taken to reform Hindu practices, when the Attorney General referred to the abolition of Sati, infanticide and Devadasi system, Justice Kurian said that all those (abolitions) were legislatively decided.
He added that the court must look into these aspects, because a community can not decide what constitutes a fundamental right. But when it is triple talaq, the government raises the question of constitutional morality. How can a sinful practice be said to be a matter of faith. At a rally in 2016, he said that India can not allow the lives of Muslim women to be ruined by three words over the phone, and the issue has been linked to BJP's electoral success in a crucial local election in Uttar Pradesh. "Triple talaq is not a practice which is prevalent and is slowly dying".
"It is our fundamental - given in the constitution - right to abide by our personal laws".
"The constitutional validity of personal law in our country can not be tested on the oasis of enacted legislation of other countries", he said in his written submissions while questioning the arguments of the Centre and of petitioners who say triple talaq has been abolished in Islamic countries. Given such patriarchal thinking, AIMPLB's take on Muslim women too having the right to exercise triple talaq appears far removed from reality.
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Asked about the civilian death toll, he added, "It is clear that we are looking at numbers that could easily reach 20 to 30". Onanga-Anyanga said that numerous militia soldiers were child soldiers who appeared to be under the influence of drugs.
He added: "It (instant talaq) has been followed for 1,400 years, whether it is right of wrong".
He said under Article 25 (right to practice religion) of Constitution, even the core component of a religion can be tested on the grounds of fundamental rights.
Sibal further argued that just like the Hindus' faith about Rama's birth at Ayodhya can not be questioned, similarly Triple Talaq which is also a matter of faith for Muslims should not be questioned.
In that context, the Centre's proclamation that it will come up with a new law if the apex court strikes down triple talaq as unconstitutional doesn't add up.
AIMPLB, has in the course of its submissions while saying that triple talaq was permissible, described it as a "sin" and "undesirable". It said India's 160 million Muslims followed the Hanafi school of Islam which validated triple talaq.
While saying that AIMPLB was a body of standing having eminent and scholarly people on it, Khurshid who is assisting the court differed with the Attorney General that the court should rule against all forms of talaq under Shariat before a law is enacted.
"There is a little difference in my and personal law board's opinion", he said. It is not a question of good conscience or morality but a question of faith. "We are not concerned about the past 1,400 years", she said. If they conclude it is, there may not be an very bad lot that the top court will do given how they have zeroed in on points that they will respond in their verdict.