"Protection of Wives Can't Be Achieved By Incarceration of Husbands".Plea In SC Challenges Law Criminalizing Triple Talaq [Read Petition]

Samastha Kerala Jamiathul Ulama, a religious organisation of the Sunni Muslim scholars and clerics in Kerala has filed a petition in Supreme Court challenging the constitutionality of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The "Muslim Women(Protection of Rights on Marriage) Bill 2019", commonly known as Triple Talaq Bill was recently passed by the Parliament which criminalizes the "Triple Talaq' , a practice which had declared null and void by the Supreme Court in ShahyaraBano v. Union of India, (2017) 9 SCC.

Section 3 of the Act declares pronouncement of talaq, including in written or electronic form, to be void and illegal. Pronouncement of triple talaq is proposed to be made an offence punishable with imprisonment for a term which may extend up to three years and fine.

The petitioner has submitted 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. 

"Section 3 is a redundant declaration. There is no purpose, no effect, no point to this provision. The Central Government cannot improve on a declaration of law made by this Hon'ble Court under Article 141 in Shahyara Bano Judgment. A redundant legislation must be regarded a dead letter.

The petitioner also submits that the intent behind the Act is not 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. 

"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".

According to the petitioner by virtue of Shahyara Bano verdict the said utterance is without legal sanction or effect. The marriage survives, regardless of such utterance. It is difficult to imagine why the mere utterance of meaningless words should attract a three-year sentence for the husband.

"As per the Judgment of this Hon'ble Court no divorce will be legally concluded by saying 'triple talaq' and thus this is to be considered as a procedural violation in effecting divorce. There are statutorily prescribed procedure for divorce in other religions too and non-compliance of this procedure for divorce is not a punishable offence for members of other religions. There is no reasonableness or constitutional logic for making the procedural infirmity in effecting divorce a punishable offence for members of Muslim community alone and such legislation cannot withstand the test of Article 14"

The petitioner also submits 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.

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 thereof, 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".

Petitioner also submits that 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. 

Read Petition