Supreme Court Issues Notice To The Centre After Petition Challenges Constitutional Validity Of Triple Talaq Law

The Supreme Court has issued a notice to the Centre on a petition challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act 2019 which criminalizes triple talaq.

A bench headed by Justice N V Ramana has agreed to examine the plea, but cited the example of harassment for dowry to ask why an act declared wrong by the court cannot be declared an offense by Parliament.

Passed by the Centre on July 31, the triple talaq law criminalizes the pronouncement of talaq and prescribes up to three years imprisonment as punishment. The court was hearing various petitions challenging the constitutional validity of the law.

Appearing for a Muslim organisation, senior advocate Salman Khurshid said there was no need to criminalize triple talaq as it had already been declared unconstitutional.

Advocate Ejaz Maqbool, who represented the Jamiat Ulaima-i-Hind, said the new law defined “talaq” to mean “talaq-e-biddat” or something similar, having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

He petition stated that such a form of divorce had already been declared unconstitutional by the Supreme Court through its judgment dated August 22, 2017 as rendered in Shayara Bano versus Union of India, adding that the Supreme Court did not express any opinion to criminalize the pronouncement of talaq by a Muslim husband.

Therefore, pronouncement of talaq by a Muslim husband upon his wife had already been declared void and illegal, the petition added.

The petitioner contended that the Act criminalizes pronouncement of divorce (talaq) despite the fact that the marriage subsists even after such pronouncement.

The petition claimed that marriage as per Islamic law is a civil contract and talaq was a mode to renounce the contract. Therefore, criminal liability cannot be imposed on Muslim men for a civil wrong, which is also a violation of fundamental rights.

The petition claimed that there are several more grave offenses, which are not punishable with stringent punishment and are bailable.

The petition stated that desertion of a wife by the husband is not even an offense, which clearly shows that provisions of criminality due to the pronouncement of instantaneous talaq are disproportionate and excessive.

The petition urged the court to consider that the three pronouncements made instantaneously should be regarded only as a single pronouncement, like in other Islamic countries, instead of criminalizing it altogether.

The petitioner also disputed Section 6 of the Act, which confers the right of custody of minor children to a Muslim woman.

The petition stated that if this provision is not stayed immediately, there might lead to circumstances where custody of the children is handed over to the mother even though that is not in the best interest of the children.