The Supreme Court on Friday issued a notice to the Centre on a plea challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act 2019 that criminalises triple talaq. A bench headed by Justice NV Ramana agreed to examine the plea, but cited the example of harassment for dowry to ask why an act declared wrong by the court cannot be declared an offence by Parliament.
Passed by the Centre on July 31, the triple talaq law criminalises the pronouncement of talaq and prescribes up to three years imprisonment as punishment. The court was hearing various petitions challenging the constitutional validity of the law.
Appearing for a Muslim organisation, senior advocate Salman Khurshid said there was no need to criminalise triple talaq as it had already been declared unconstitutional. Advocate Ejaz Maqbool, who represented Jamiat Ulaima-i-Hind, said the new law defined "talaq" to mean "talaq-e-biddat" or something similar having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.
"Pertinently, such a form of divorce had already been declared unconstitutional by the Supreme Court vide its judgment dated August 22, 2017 rendered in Shayara Bano v. Union of India," said the petition, adding that the top court did not express any opinion to criminalise the pronouncement of talaq by a Muslim husband.
"Therefore, the pronouncement of talaq by a Muslim husband upon his wife had already been declared void and illegal; as a result no circumstances were to exist, which lead to the enactment of the Act," the petition added.
The petitioner contended that the Act criminalises the pronouncement despite the fact that the marriage subsists even after such pronouncement.
It claimed that marriage as per Islamic law is a civil contract and talaq was a mode to renounce the contract. Therefore, criminal liability cannot be imposed on Muslim men for a civil wrong, which is also a violation of the fundamental rights. It also claimed that there are several more grave offences, which are not punishable with stringent punishment and are bailable.
"In fact, desertion of a wife by the husband is not even an offence. This clearly shows that the provisions qua criminality of the pronouncement of instantaneous talaq are disproportionate and excessive," said the petition.
The petition urged the court to consider that the three pronouncements made instantaneously should be regarded only as one pronouncement, like in other Islamic countries, instead of criminalising it altogether.
The petitioner also disputed Section 6 of the Act, which confers the right of custody of minor children on a Muslim woman.
"It is submitted that if this provision is not stayed immediately, there might lead to circumstances where the custody of the children is handed over to the mother even though that is not in the best interest of the children," said the petition.