SC Issues Notice On Another Plea Challenging Criminalization Of Triple Talaq

Last month, the Court had issued notice in three petitions, filed by Samastha Kerala Jamiathul Ulema, Jamiat Ulama-i-Hind and Amir Rashadi Madni, challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019. It is noteworthy that Section 3 of the Act prescribes imprisonment of a Muslim husband for a term which may extend to three years and fine, in the event of pronouncement of Triple Talaq.

The instant petition, filed by the Muslim Advocates Association from Andhra Pradesh through Advocate Sureshan P., and the aforesaid three petitions, contest the penal legislation on the touchstone of Articles 14, 15, 21 and 25 of the Constitution.

Grounds

1. The Petitioner in the instant case contends that the Supreme Court had already declared the practice of Triple Talaq as unconstitutional in Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1 and thus, the utterance of the words, whether by a Muslim or person of any other community, is equally irrelevant. However, the Act entails penal provisions only against the utterance of Triple Talaq by a Muslim husband and it is discriminatory in nature, so far as it is specific to a class of persons based on religious identity.
2. It also submitted that after the aforementioned ruling, the practice of triple talaq was merely a procedural violation in effecting divorce; and while there are statutorily prescribed procedure for divorce in other religions too, non-compliance of this procedure for divorce is not a punishable offence for members of other religions.
3. It was further submitted that the Central Government could not improve on a declaration of law made by the Supreme Court under Article 141 of the Constitution and thus the legislation must be regarded as a dead letter.
4. The petition also challenged retrospective applicability of the Act being violative of Article 20 (1) of the Constitution and submitted that the intent behind the Act was not abolition of Triple Talaq but instead punishment of Muslim husbands.
5. With regards Section 5 of the Act which prescribes payment of maintenance, it was submitted that "when the pronouncement of triple talaq instantly has no legal value and the marital relationships survives the affected wife has every rights to get maintenance as per the relevant provisions of the applicable general law and thus no need to bring separate provision for dealing the same subject".
6. The grant of automatic custody of a minor child to the mother under Section 6 of the Act has been contested as being arbitrary and violative of Article 14 of the Constitution.
7. The sanctity of Section 7 of the Act has also been questioned so far as it compels Police to arrest a Muslim husband who uttered the words without recording any satisfaction for arrest and without having any need of custodial interrogation or investigation. This was alleged to be contrary to the realm of Section 41A of CrPC, Articles 14, 21, 25 of the Constitution and the Supreme Court's ruling in D.K. Basu v. State of West Bengal.
8. Reliance was also placed upon the judgment in Joseph Shine v. Union of India. W.P (C) No. 194/ 2017, to assert that "mere personal act" can't be termed as criminal offence and to contend that the legislation suffered at the hands of gender bias.
9. The Petitioner also said that happiness of a woman could not, by any stretch of imagination, be ensured by putting an errant husband in jail for 3 years.
10. It was also submitted that the Act lends some semblance of legitimacy to "Triple Talaq" even though the practice has no legal recognition.
11. It was lastly alleged that the Act wrongly makes special dispensation for women subjected to "Triple Talaq" despite the fact that pronouncement of Triple Talaq has no legal effect and as such women subjected to such pronouncement are not a distinct or separate class of persons.

The Petitioner has thus prayed for striking down the Act as being unconstitutional and has sought a stay on the operation of the Act in the interim.