Rohatgi told the bench that if they struck down triple talaq, as well as Nikah Halala and polygamy, the government would draft and institute a new law.
The apex court began the hearing on a batch of cases challenging the constitutional validity of triple talaq, nikah, halala and polygamy practices among Muslims.
The bench said "it may not be possible to deal with all the three issues in the limited time we have".
He said the apex court has to test them on the touch-stone of the fundamental rights of gender equality, justice, dignity, gender discrimination and human rights under the constitutional provisions, including Articles 14, 15, 21 and 51A.
Referring to the prevalent practice in Islamic nations, he had said even if one says talaq thrice in a go, it was considered as one, thus negating irrevocability of divorce.
The board has asserted that a practice which is being followed for 1,400 year cannot be termed as un-Islamic.
Justice Rohinton Nariman asked Kapil Sibal, "You mean to say that we shouldn't hear the matter".
When the AG asked the bench to make it clear that the issues of polygamy and "nikah halala" are still open and would be dealt by other bench in future, the court clarified "it will be dealt in future".
The court additionally watched that triple talaq authorised under Muslim Personal Law that represents marriage, property and separation damages the privileges of Muslim ladies. The Attorney-General said all three forms of triple talaq - talaq-e-biddat, talaq hasan and talaq ahasan - are "unilateral, extrajudicial, unequal" and have to be struck down.
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Citing the 1937 Muslim Personal Law (Shariat) Application Act, he said it was not an attempt to codify Muslim personal law and its "essential purpose" was to ensure that all those customs and practices which were contrary to Islam but being followed by those who embraced Islam should be discontinued and declared contrary to Islam.
The board brought up the long-pending dispute over building a temple to Lord Ram in Ayodhya, which Hindus believe is his birth place, before a five-judge constitution bench which is hearing petitions demanding scrapping of the controversial divorce practice. "Hence since it is not law as per Article 13, it does not attract the drill of the fundamental rights", he said.
He asked: "If there is a conflict between constitutional morality and personal law, which shall prevail?"
But the bench said: "Tenets of religion can not be tested on any ground".
"There was a discussion that whether Triple Talaq is valid constitutionally".
"Triple talaq is unconstitutional".
However, the All India Muslim Personal Law Board has opposed any judicial interference in what it calls a religious matter, protected under Article 25, which grants freedom of religion.
The bench said two other forms of divorce have some safeguards but whether triple talaq had such safeguards?