The Jamiat Ulama-i-Hind has moved the Supreme Court against the Centre, saying triple talaq has been made a non-bailable offence by which Muslim men can be imprisoned for three years even as desertion of a wife by a husband is not even considered an offence in India. At best, desertion is a ground for divorce.
The three-year imprisonment prescribed under the new Muslim Women (Protection of Rights on Marriage) Act of 2019, is both “disproportionate and excessive”, the Jamiat’s petition said.
The organisation of Islamic scholars belonging to the Deobandi school, which came into existence in 1919, said the new law has made the declaration of triple talaq an offence graver than crimes such as rioting, kidnapping, death by negligence, concealment of birth by secret disposal of body, bigamy, bribery and food adulteration. It said even offences such as kidnapping, which are far graver, are bailable. Making the pronouncement of instantaneous talaq non-bailable is both excessive and unwarranted, the Jamiat, represented by advocate Ejaz Maqbool, argued.
The petition said the punishment for rioting was imprisonment up to two years or fine or both. For bribery, under Section 171E of the Indian Penal Code, the punishment was up to one year or fine or both.
The three-year punishment for Muslim husbands rebelled against the very notion of “just deserts”, which requires that a sentence being imposed must be proportionate to the offender’s culpability is applicable to criminal jurisprudence, the petition said.
Already invalid
“Prescribing a punishment of imprisonment of up to three years for a pronouncement of talaq having the effect of instantaneous divorce, when the same pronouncement can be lawfully made within a period of three months, without attracting any penal consequences, whatsoever, is not only disproportionate but extremely excessive and stringent,” the petition said.
The petition asked how the law works for the betterment of Muslim women if their husbands are sent to jail for three years for pronouncing triple talaq, which is already invalid. The very pronouncement of triple talaq had already been declared invalid by the Supreme Court in a judgment in 2017, that is, before the coming of the Act. Thus, despite the pronouncement of instant talaq, the man continues to be her husband.
“The pronouncement of talaq by a Muslim husband upon his wife had already been declared void and illegal. No circumstance, whatsoever, existed in the first place requiring the enactment of the Act,” it said.
The Act criminalises the act of pronouncement of talaq by a Muslim husband and makes it a cognisable offence, without appreciating that such pronouncement had already been declared unconstitutional,it said.
