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The petition has been filed by Samastha Kerala Jamiathul Ulema, a religious organisation of the Sunni Muslim scholars and clerics in Kerala.
The petitioner has contended violation of Articles 14, 15 and 21 of the Constitution of India.
The petition states that the Act has introduced penal legislation, specific to a class of persons based on religious identity. It is causative of grave public mischief, which, if unchecked, may lead to polarization and disharmony in society.
It has, therefore, prayed for striking down the Act and has also sought a stay on the operation of the Act in the interim.
The specific provisions and grounds of challenge are as follows:
Violation of Article 14
Sections 3 and 4
Section 3 is a redundant declaration. There is no purpose, no effect, no point to this provision. The Supreme Court had already declared the practice of Triple Talaq as unconstitutional in the Shayara Bano case.
Thus, it is the petitioner’s submission that the Central Government cannot improve on a declaration of law made by the Supreme Court under Article 141 in Shayara Bano. Redundant legislation must be regarded as a dead letter.
The real thrust for the Act is thus not the reiterative (and futile) declaration contained in Section 3 but the punishment prescribed by Section 4, the petition states. It has been alleged that the intent behind the Act is not the abolition of Triple Talaq but punishment of Muslim husbands. Section 4 imposes a maximum sentence of 3 years imprisonment when a Muslim husband pronounces Triple Talaq. The offence is cognizable and non-bailable as per Section 7.
While the creation of an offence is the prerogative of the Central government, the Government is duty-bound to act reasonably and sensibly. In the instant case, there is no informed assessment or study that forms the basis for the Central Government to have created this offence, the petitioner contends. Thus, some isolated instances of the practice have occurred does not imply that a penal provision is required to be immediately enacted to prevent the practice, the petitioner has argued.
Moreover, the petitioner has relied on the test of manifest arbitrariness laid down by Justice Rohinton Nariman in the Triple Talaq judgment to test Constitutionality under Article 14.
Describing “manifestly arbitrariness”, the Justice Nariman had observed in Shayara Bano:
“manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation is manifestly arbitrary.”
In the instant case, if the motive was to protect a Muslim wife in an unhappy marriage, no reasonable person can believe that the means to ensure it is by putting an errant husband in jail for 3 years and create a non-bailable offence for merely saying “TalaqTalaqTalaq”.
Moreover, after Shahyara Bano, the said utterance is without legal sanction or effect. The marriage survives, regardless of such utterance. Hence, the petitioner has questioned the logic and intent of why the mere utterance of meaningless words should attract a three-year sentence for the husband.
Due to the above reasons, the petitioner has claimed that Sections 3, 4 and 7 are capricious, irrational, without adequate determining principle, excessive and disproportionate and hence, manifestly arbitrary. They deserve to be struck down under Article 14. Since the aforesaid provisions are not severable from the other provisions of the Act, the entire Act has to be struck down, the petitioner submits.
Sections 5 and 6
Sections 5 and 6 of the Act creates a classification among married women who have suffered “Triple Talaq” and those who have not. Both provisions are causative of confusion as it lends some semblance of legitimacy to “Triple Talaq” even though the practice has no legal recognition.
A marriage continues regardless of the utterance of Triple Talaq as per Shahyara Bano. If the pronouncement of Triple Talaq has no legal effect, women subjected to such pronouncement are not a distinct or separate class of persons. There is no reasonable classification made in Sections 5 and 6 which makes special dispensation for women subjected to “Triple Talaq”. Thus, it is the petitioner’s case that the classification is violative of Article 14 and has to be struck down.
Violation of Article 15
Article 15 forbids class legislation predicated solely on the basis of a person’s religion. Considering that Triple Talaq is not recognized in law, the utterance of the same, whether by a Muslim or person of any other community is equally irrelevant. However, Section 3 of the Act declares that it is only the utterance of Triple Talaq by the “Muslim husband” that is “void and illegal”.
The scope of Sections 3 and 4 of the Act, being confined to Muslim husbands, has no constitutional justification under Article 15. Thus, the petitioner argues that if the act has no recognition in law, only Muslims cannot be penalized for committing the act.
Violation of Article 21
Substantive due process is now recognized to be a part of a person’s fundamental right under Article 21. A law that is not just, fair or reasonable is no law under the Constitution.
The Act, in this case, is manifestly arbitrary and discriminatory. It creates an offence and causes a deprivation of liberty without justification, the petitioner contends.
There is no benevolence or welfare apparent in this Act. Abolition of Triple Talaq was not a surviving cause for legislative action.
Protection of wives cannot be achieved by incarceration of husbands. Welfare-Oriented legislation would promote amicable resolution of matrimonial disputes, regardless of community. Such a legislation would not purport to criminalise marital discord and moreover, particularize the criminalization only to one community. Any such legislation ought to shock the judicial conscience. The Act is such an endeavour and ought to be struck down for violating Article 21, the petitioner has contended.
A petition challenging the same law has also been filed in the Delhi High Court.