SC notice to Centre on plea challenging 'triple talaq'

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'.

The court order came on a fresh petition filed by the Muslim Advocates Association.

A bench headed by Justice N.V. Ramana also tagged the fresh petition with other pleas challenging the constitutional validity of the law.

Passed by the Centre on July 31, the 'triple talaq' law criminalises the pronouncement of divorce or 'talaq' and prescribes up to three years imprisonment as punishment.

Muslim Advocates Association's counsel Kamlesh Kumar Mitra called the law's violation of Constitutional rights and said it has immediate propensity to deprive Muslim men and women of their fundamental rights.

He also called the law as unconstitutional and sought a stay on the Muslim Women (Protection of Rights on Marriage) Act.

Earlier Jamiat Ulaima-i-Hind, has 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 Jamiat Ulaima-i-Hind's 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 interests of the children," said the petition.