Triple talaq ‘fatal’ to institution of marriage, Centre tells Supreme Court; defends law criminalising it

Satya Prakash

Tribune News Service

New Delhi, August 19

Terming triple talaq as “fatal” to the institution of marriage, the Centre has defended before the Supreme Court the 2019 law criminalising the practice among Muslims.

In an affidavit filed in response to petitions challenging the Muslim Women (Protection of Rights on Marriage) Act, 2019, the Centre said the practice of triple talaq essentially legitimised and institutionalised “abandonment of wives by their husbands”.

“The practice did not simply result in a private injury, but in a public wrong as it militated against the rights of women and the social institution of marriage itself,” the affidavit submitted.

“Parliament in its wisdom has enacted the impugned Act to protect the rights of married Muslim women who are being divorced by triple talaq. The Act helps in ensuring the larger constitutional goals of gender justice and gender equality of married Muslim women and helps subserve their fundamental rights of non-discrimination and empowerment,” the Centre said.

Petitioners Jamiat Ulama-I-Hind, Samastha Kerala Jamiathul Ulema and Islamic scholar Amir Rashadi Madni have challenged the constitutional validity of the 2019 law on the ground that it violated various provisions of the Constitution, including fundamental right against discrimination under Article 15 which prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

A five-judge Constitution Bench had in August 2017 declared the practice of instant triple talaq unconstitutional. But despite that Muslim men were resorting to it in various parts of the country.

The Act makes it illegal to pronounce talaq three times — spoken, written or through SMS or WhatsApp or any other electronic chat — in one sitting. According to it, 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.

The Centre said despite the Supreme Court setting aside the practice, it has “not worked as a sufficient deterrent in bringing down the number of divorces by this practice” among Muslims.

The Supreme Court had on August 23, 2019, issued a notice to the Centre on petitions challenging the validity of the law which made the practice of instant triple talaq among Muslims a punishable offence attracting a three-year jail term. “Why such a practice can’t be made punishable if it’s still prevalent?” it had asked after the petitioners’ counsel contended that triple talaq had already been declared illegal and there was no need to criminalise it.

Jamiat Ulama-I-Hind has claimed that since the pronouncement of talaq by a Muslim husband upon his wife had already been declared “void and illegal”, there was no requirement to enact the law.

Samastha Kerala Jamiathul Ulema alleged that the intent behind the Act was not the abolition of triple talaq, but punishing Muslim husbands. It contended that the Act introduced a penal law specific to a class of persons based on religious identity, which can cause grave public mischief, and if unchecked, may lead to polarisation and disharmony in society.

Contending that marriage was a civil contract under the Muslim law, Madni submitted that there can’t be any criminal liability for terminating a contract.

Violates Article 15, claims Jamiat

• Jamiat Ulama-I-Hind, Samastha Kerala Jamiathul Ulema have challenged the constitutional validity of the 2019 law
• Both outfits claimed the law violated various provisions of the Constitution, including the fundamental right under Article 15
• The Centre argued the law helped in ensuring gender justice and gender equality of married Muslim women