MHC ordered notice on plea challenging triple talaq ordinance

A division bench comprising Justice S Manikumar and Justice P T Asha before whom the public interest litigation moved by Hussain Afroze, an advocate practicing at MHC came up on Friday issued notice to the Union Ministry of Law and Justice returnable in two weeks.

The petitioner submitted that as per the current legal position laid down by the Supreme Court, on the pronouncement of triple talaq the marriage does not get terminated. However, the definition of talaq in the ordinance which states “talaq means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband” contradicts the law of the land.

Further, noting that talaq-e-biddat as held by the Supreme Court is invalid in law and consequentially there can be no irrevocable divorce that would take place on such a pronouncement, the petitioner said, “the pronouncement of triple talaq is otiose thus there is no legal justification for imposing a punishment upon an utterance which has no legal validity and it does not inflict any injury legal or otherwise.” “For an act to be a crime there must be an injury caused to an individual or the society at large. In the instant case, the pronouncement of triple talaq does not dissolve the marriage and this has been established and confirmed and reconfirmed by the judgement of the Supreme Court in the cases Shameem Ara and thereafter in the case of Shayara Banu. Such being the legal position the imposition for a period up to three years and also a fine, smacks of malafide and arbitrariness,” the petitioner added.

Afroze also submitted that a Muslim marriage is a contract and in the event of there being a breach of any contract, the law of the land would stipulate damages as a relief.

To transform a civil dispute into an act of criminality and have it visited with penal consequences and more upon a selected group of people should profess a particular religion is illegal and discriminatory.