Supreme Court Tags Petition Challenging Criminalisation Of Triple Talaq With Pending Petitions

The lawyer appearing for the petitioner contended that the provisions for punishment of a Muslim husband conducting triple talaq were "anti-men and violative of their rights."

The CJI asked the advocate appearing  how the Muslim Women (Protection of Rights on Marriage) Act, 2019 was violative of the rights of men. He posed “ How does it violate the rights of men?”

To which the Advocate responded, “In fact, it criminalizes the triple divorce, my lord. S. 3 and 4 of the Act are contrary to each other.”

Section 3 of the 2019 Act provides that :

“3. Talaq to be void and illegal.—Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”

Whereas, the Punishment for pronouncing Talaq under Article 4 prescribes imprisonment of the divorcing husband for a period of 3 years along with a fine

“4. Punishment for pronouncing talaq.—Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”

The bench comprising CJI DY Chandrachud and Justice JB Pardiwala and Manonj Misra, though didn't seem inclined to issue notice, tagged the matter with other pending PILs on the identical question of law, and asked the lawyer to appear before the hearing of the tagged cases.

The CJI remarked, “ Not necessary, we will just place it … you will be heard by the court.”

The Challenge To The Criminalisation Of Triple Talaq - A Pendency Of Petitions

In August 2019, the Supreme Court issued notice to the Union on a batch of petitions challenging the constitutional validity of the 2019 Act.

Samastha Kerala Jamiathul Ulama, Jamiat Ulama-i-Hind, Muslim Advocates Association( Andhra Pradesh) etc. have filed the previous petition.

The petitioners had 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. I

As per their grounds, 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.

Further, it stated that marriage as per Islamic Law was a civil contract and 'talaq' was a mode to repudiate the contract. Therefore, the imposition of criminal liability for a civil wrong was in clear violation of the Fundamental Rights of Muslim men.

Additionally, it was pointed out 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.

It was contended 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.

Case Details: AMIR RASHADI MADANI vs. UNION OF INDIA W.P.(C) No. 000096 - / 2024