The Supreme Court is now hearing various legal luminaries on legality or otherwise of the Islamic practice of triple talaq. The central question is whether it is a religious practice and if so is it an essential religious practice.
Kapil Sibal is bending over backwards to prove that it is both. The argument as reported in The Hindu runs on these lines:
"Triple talaq is a matter of faith for Muslims similar to how it is a matter of faith for Hindus that Lord Ram was born in Ayodhya, the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court on Tuesday.
Why is the Centre so keen to raise doubts about the constitutional morality of Muslims' faith in the 1400-year-old practice of triple talaq when no such doubts have been raised about the Hindus' faith that Ayodhya is the birthplace of Lord Ram? Who is the government to say that triple talaq, evolved through social and family norms, is “un-Islamic”? senior advocate Kapil Sibal, appearing for AIMPLB, asked a five-judge Constitution Bench led by Chief Justice of India J.S. Khehar."
It is absurd to equate a matter of belief with a matter of practice. The belief that someone was born in a place does not jeopardise anyone. But a practice that impinges on one's right is capable of landing a person in deep trouble. Triple talaq is something that is practised and some claim that it is unilaterally deleterious to the interests of affected women. It is accepted that it is not the only way of divorce. Therefore, if the court is convinced that it is repugnant to gender-justice, it has to be outlawed.
Kapil Sibal further argues:
"“For example, the husband is cruel and a drunk. The woman is fed up and wants instant triple talaq, but the husband refuses it to torture her further. She has no money to go to the courts. She is left to live her life in utter despair. If the society intervenes and her husband gives her instant talaq, you will call it illegal. So, there are many complexities, which the Supreme Court cannot go into in a matter of just six days. Personal law relates to personal relationships,” he argued."
This is where the learned advocate really bends over backwards. In the process he gives an incredible and utterly unlikely example. When we try to take care of an extremely unlikely event like the far-fetched example provided by Sibal, we are likely to sacrifice the interests of a preponderant majority and this is what happens here.
In any bilateral relationship such as marriage, conferment of right to one party and not to the other party is prima facie perverted and cannot claim legal protection.