Breaking: Supreme Court issues notice in challenge to criminalisation of Triple Talaq

Breaking: Supreme Court issues notice in challenge to criminalisation of Triple Talaq

Murali Krishnan

The Supreme Court today issued notice to the Central government in three petitions challenging the Constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises Triple Talaq.

A Bench of Justices NV Ramana and Ajay Rastogi heard three petitions filed by Samastha Kerala Jamiathul Ulema, Sayyed Farooq and Jamiat Ulama-i-Hind.

While issuing notice, Justice Ramana asked Senior Advocate Salman Khurshid, who was appearing for the petitioner,
“Practices like Sati, dowry etc have been declared bad by courts, can a law not be enacted against the same? This is just a doubt I have.”
“The issue, in this case, is on the impact of wife”, Salman Khurshid explained saying how the law could negatively impact Muslim women.

The petitioners have contended violation of Articles 14, 15 and 21 of the Constitution of India.

The petitions state 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 petitioners have submitted that 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, it is contended.

It has been submitted that 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 petitioners have, therefore, alleged that the intent behind the Act is not the abolition of Triple Talaq, but the punishment of Muslim husbands.

If the motive were 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 creating a non-bailable offence for merely saying “Talaq Talaq Talaq”.

Hence, the petitioners allege violation of Article 14.

Further, 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 petitioners have argued that if the Act has no recognition in law, only Muslims cannot be penalized for committing the act.

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