The newly enacted law which makes the practice of instant divorce through ”triple talaq” among Muslims a punishable offence was challenged in the Supreme Court on Friday.
A day after President Ram Nath Kovind gave assent to The Muslim Women (Protection of Rights on Marriage) Act, 2019, ”Samastha Kerala Jamiathul Ulema”, a religious organisation of Sunni Muslim scholars and clerics in Kerala, moved the top court seeking to declare it as unconstitutional.
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“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,” the plea said.
The organisation, claiming itself to be the largest Muslim organization in Kerala in terms of number of followers, submitted that the legislation is class specific to Muslims and 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,”
the plea said.
It claimed that the Act is violative of Articles 14, 15 and 21 of the Constitution and thus, is liable to be struck down.
The plea said that 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 three years and create a non-bailable offence for merely saying ”Talaq Talaq Talaq””.
The new law makes ”talaq-e-biddat” or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband void and illegal.
It makes it illegal to pronounce talaq three times — spoken, written or through SMS or WhatsApp or any other electronic chat — in one sitting.
“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 law says.
While challenging the constitutional validity of the new law, the petitioners, including the organisation”s general secretary Alikutty Musliyar, referred to section 1 (3) of the Act that gives a retrospective effect to it from September 19, 2018.
“Creation of an offence may be the prerogative of the legislature. The government is duty bound to act reasonably and sensibly, not merely in administrative matters but sovereign matters. To petitioner”s knowledge, there is no informed assessment or study that forms basis for the Central Government to have created this offence,” the plea said.
The petition said there are statutorily prescribed procedures 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,” it said.
It said that a “welfare oriented legislation” would not purport to criminalise marital discord and moreover, particularise the criminalisation only to one community.
“With respect, it is submitted that any such a legislation ought to shock the judicial conscience. The impugned Act is such an endeavour and ought to be struck down for violating Article 21,” it said.
