"Unfair Discrimination Against Muslim Husbands": New Plea In SC Challenges The Validity Of Triple Talaq Law [Read Petition]

 "Jamiat Ulama-i-Hind has filed a petition before Supreme Court, challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (the Act).

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

Subsequently, the triple talaq law- Women (Protection of Rights on Marriage) Act 2019 was passed by the Central government on July31, 2019, criminalizing such pronouncement and prescribing a punishment of up to 3 yrs imprisonment for the same.

The Petitioner is an organization involved in philanthropic activities, including protection of Islamic Culture and has filed the present petition through Advocate Ejaz Maqbool. It has contested the constitutional validity of the Central legislation in terms of Articles 14, 15 and 21 of the Constitution on the following grounds:

1. That no circumstance requiring the enactment of the Act existed since such a form of divorce had already been declared unconstitutional by the Apex Court. Thereby, such a pronouncement was non est in law and a marriage would subsist even after the said pronouncement. It was further submitted that the Act has also turned a blind eye towards the plight of under trials and the overburdened judiciary by enacting a superfluous Act.
2. That marriage as per Islamic Law was a civil contract and 'talaq' was a mode to repudiate the contract. Therefore, imposition of a criminal liability for a civil wrong was in clear violation of Fundamental Rights of Muslim men.
3. That the main object of the Act should have been implementation of the judgment and protection of the rights of married Muslim women rather than imposing punishment for incarceration upon the husband. Such imprisonment of the husband rather feeds upon the scope of reconciliation of the wed lock.
4. That Desertion, which plagues all the communities, has not been criminalized and thus the Act is discriminatory against Muslim husbands and is, in the absence of an intelligible differentia, violative of Article 14 of the Constitution.
5. That Section 4 of the Act prescribes imprisonment of upto 3 years which is an excessive and disproportionate punishment in as much as lesser punishments have been prescribed by the law makers for many offences which are far graver, including Rioting, Adulteration of food or drink, etc. It was further submitted in light of Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India, (2014) 9 SCC 737, that the notion of 'just deserts' which requires that a sentence being imposed must be proportionate to the offender's culpability is applicable to criminal jurisprudence.
6. That Section 7 of the Act makes it a cognizable and non-bailable offence while offences like Kidnapping, Causing death by negligence, etc., which are far graver, are bailable offences.
7. That it is a trite law that criminal liability cannot be introduced with retrospective effect and despite that, the Act has a retrospective effect from September 19, 2018.
8. That the Act has departed from the settled position of law that a Court is not bound to issue notice to the Complainant or hear them while exercising powers for grant of bail; since Section 7(c) of the Act stipulates that no bail shall be granted without hearing the Muslim woman upon whom talaq is pronounced.
9. That Section 5 of the Act entitles a married Muslim woman, on whom talaq has been pronounced, to receive subsistence allowance. However, the legislature has failed to contemplate that imprisonment of Muslim man under Section 4 of the Act will render him incapable of earning and providing such subsistence allowance.

The petitioner also submitted that "imprisonment of upto 3 years for a pronouncement of talaq having the effect of instantaneous divorce, when the same pronouncement can be lawfully made within a period of three months, without attracting any penal consequences, whatsoever, is not only disproportionate but extremely excessive and stringent, which is completely arbitrary and has no nexus, whatsoever, with the object sought to be achieved, thereby falling foul of Articles 14, 15 and 21".

It has been persuaded that like other Islamic countries, three pronouncements made instantaneously should be regarded only as one pronouncement instead of criminalizing it altogether.

The Petitioner has also disputed Section 6 of the Act which confers the right of custody of minor children on the Muslim woman. This provision has been alleged to be passed without taking into consideration the best interests of the children in as much as it provides an all-encompassing, overarching provision in favour of the wife and does not envisage the existence of any exceptional circumstances where custody may be granted to the Muslim husband or his family.

A similar plea was also filed by the religious organization, Samastha Kerala Jamiathul Ulama, earlier this month. 

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