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The Madras High Court has been moved against the recently promulgated Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 (‘Triple Talaq Ordinance’) which seeks to criminalize the practice of Triple Talaq.
The Bench of Justices S Manikumar and PT Asha issued notice in the matter following initial arguments made by Advocate Zafarullah Khan for petitioner, Hussain Afroze.
The petition prays that clauses 4-7 of the Triple Talaq ordinance be declared as unconstitutional. Echoing concerns raised by similar petitions pending before the Supreme Court and the Bombay High Court, it contends that the Triple Talaq Ordinance was promulgated in violation of Articles 14, 15 and 123 of the Constitution.
It is pointed out that after the Supreme Court struck down the practice of instant Triple Talaq i.e. talaq-e-biddat, as unconstitutional, there can be no irrevocable divorce that would take place on such a pronouncement.
Therefore, the motive behind criminalising Muslim men for uttering words which do not entail any legal injury has been questioned. As noted in the petition,
“… the pronouncement of Triple Talaq is otiose thus there is no legal justification for imposing a punishment upon an utterance which has no legal validity and it does not inflict any injury legal or otherwise.
For an act to be a crime there must be an injury caused to an individual or to the society at large. In the instant case, the pronouncement of triple talaq does not dissolve the marriage and this has been established and confirmed…in the case of Shameen Ara and thereafter in the case of Shayara Banu.
Such being the legal position, the imposition of a punishment for a period upto 3 years and also a fine, smacks of malafides and arbitrariness.“
It is noted that while the sentiment of saving Muslim women projected by the Ordinance is respected, the reality post the Shayara Bano verdict is being distorted and does not conform to reality.
Another ground raised is the conversion of a civil matter into a crime. It has been submitted that Muslim marriage is a contract. In the event of a breach, the law of the land stipulates damages as the relief. In the context of criminalising such disputes in the Muslim marriage contract, it has been argued,
“To transform a civil dispute into an act of Criminality and have it visited with penal consequences and more [so] upon a select group of people who should profess a particular religion is illegal and discriminatory.“
In view of these observations, it has been contended that the Muslim-centric Ordinance would clearly be hit by the anti-discriminatory provisions in Articles 14 and 15 of the Constitution.
Further, given that the Triple Talaq Bill was initially pending the approval of the Rajya Sabha, and since the Triple Talaq Ordinance does not disclose any urgent need requiring its promulgation, it is contended that the invocation of Article 123 (1) does not stand to reason and cannot be justified.
Relying on Krishna Kumar Singh v. State of Bihar, it is pointed out that an Ordinance can only be promulgated under Article 123 (1) when Parliament is not in session and there is a contingency requiring the immediate introduction of an ordinance. It has been emphasised that Article 123 does not confer parallel law making powers on the President of India.
The government counsel present in court today accepted notice and sought time to obtain appropriate instructions in the matter. Accordingly, the matter has been posted for after two weeks.
Read the petition: