There Was Need For State Action To Give Effect To Shayara Bano Ruling: Centre Informs Supreme Court In Plea Challenging Constitutional Validity of Triple Talaq Law

The Centre in its affidavit filed in response to the petitions challenging the Muslim Women (Protection of Rights on Marriage) Act 2019 has stated that the despite the ruling of the Supreme Court declaring the practice of Triple Talaq unconstitutional, reports show that this practice of divorce continues to exist. As the judgment in Shayara Bano case hasn't led to a decrease in the instances of triple talaq, there was a need for state intervention to help victims of such divorce, the Centre has informed the Supreme Court.

The Centre argues that there was a need for immediate action to prevent the practice of triple talaq by making stringent provisions as the practice is still rampant in the country. It is in this backdrop the Muslim Women (Protection of Rights on Marriage) Act 2019 was introduced to protect the rights of married Muslim women being divorced by way of triple talaq by criminalizing the Act with imprisonment upto 3 years, the Centre has informed the Supreme Court.

“In spite of the Hon’ble Constitution Bench’s judgment in Shayara Bano case, thereby setting aside the practice of talaq-e-biddat, and the assurance of the All India Muslim Personal Law Board, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It was seen that setting aside talaq-e-biddat by this Hon’ble Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. Therefore, it was felt that there is a need for State action to give effectto the order of the this Hon’ble Court and to redress the grievance of victim of illegal divorce ”, the affidavit states.

The Centre has contended that even though the All India Muslim Personal Board in the Shayara Bano case had agreed to prescribe guidelines to control the practice of Triple Talaq, media reports show that the practice continues unabated.

The Apex Court vide its judgment dated August 22, 2017 in Shayara Bano v. Union of India & Ors., (2017)9 SCC 1, had declared the 'talaq-e-biddat' or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband, unconstitutional.

Pursuant to this ruling, the triple talaq law- Muslim Women (Protection of Rights on Marriage) Act 2019 was passed by the Central government on July 31, 2019, criminalizing pronouncement of divorce in a such manner and prescribing a punishment of up to 3 years imprisonment for the same.

Challenging this legislation a batch of petitions have been filed before the Supreme Court challenging the constitutional validity of the Act for being violative of Articles 14,15,21 and 25 of the constitution.

The Centre has stated in its affidavit that the despite the victims of Triple Talaq approaching the police for redressal of their grievance, the police was helpless as no punitive action could be taken against husbands indulging in the practice even though it had been declared unconstitutional by the Apex Court. This created a need for stringent provisions in law to act as a deterrent to persons who continue to divorce their wives by the practice of talaq, the Centre argues.

The Centre has also stated in its affidavit that before the Act was passed, the only recourse available to Muslim women was the Protection of Women from Domestic Violence Act, 2005 which was ineffective against the instantaneous and irrevocable practice of talaq. This created a need for a standalone legislation penalising the practice.

The Centre has also questioned the maintainability of the petition on the ground that the petition was filed challenging the validity of the Muslim Women (Protection of Rights on Marriage) Bill 2019, which has now become an Act making the matter infructuous.

The Court’s power is limited to assessing the constitutionality of the legislation and it has no power to go ‘into the wisdom of the measure’, the Centre has argued. The Centre has also stated in its affidavit that the court cannot interfere with a legislation that has made punishable an act that the Court has already declared to be violative of Article 14 of the constitution.

“the Parliament in its wisdom has enacted the impugned Act to protect the rights of the married Muslim women who are being divorced by triple talaq. The impugned Act helps in ensuring the larger constitutional goals of gender justice and gender equality of married Muslim women and helps subserve the fundamental rights of non-discrimination as also their empowerment.”

Case Title: Amir Rashadi Madani V Union of India | Writ Petition (Civil) No. 993 of 2019