The Karnataka High Court on Thursday directed the Union government to file its response in four weeks to a PIL petition challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage), Act, 2019, which declares triple talaq as illegal while prescribing a punishment of up to three years imprisonment for any Muslim husband who uses talaq-e-biddat for divorce.
A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Mohammad Nawaz passed the order on the petition filed by Mohamed Arif Jameel, a social worker from Bengaluru.
Contending that there was no immediate need for the Union government to enact a law after the Supreme Court declared talaq as illegal, it has been alleged in the petition that the real purpose of the new legislation was not reiterating apex court declaration but prescribing punishment for Muslim husbands.
Claiming that there may have been a few instances of triple talaq despite apex court’s declaration, the Union government lacked any statistics to come to a conclusion that the practice of talaq was unabated despite court’s verdict, the petitioner claimed and said that the apex court verdict does not imply that penal provision has to be immediately enacted to prevent the illegal practice of triple talaq. “Protection of wives cannot be achieved by incarceration of husbands,” the petition contended.
“There is no reasonable or constitutional logic making procedural infirmity in effecting divorce a punishable offence for members of Muslim religion alone,” it has been contended in the petition while arguing that if the object was to protect Muslim women then no reasonable person can believe that such an object can be achieved by sentencing husbands to prison up to three years and making the offence as non-bailable one.
“The offence [of pronouncing talaq] is confined only to Muslim husbands. it is absurd that for an utterance that has no legal effect, whether spoken by Muslim, Hindu or Christian it is only the Muslim husbands who are penalised with three years imprisonment and hence the penal provision restricting it to Muslims is discriminatory and violation of Article 15 of the Constitution of India” it has been contented in the petition while arguing that only Muslims cannot be penalised for illegal act.
The provision to grant bail to Muslim husband accused of using talaq only after the magistrate hears the married Muslim women upon whom talaq is pronounced is contrary to the settled principles of law on grant of bail, it has been argued in the petition while contending that the provisions of the new are also violative of Article 14 (equality before law), Article 21 (protection of life and personal liberty) and Article 25 (freedom of conscience and free profession, practice and propagation of religion).
