The Supreme Court on Friday took on board a batch of petitions challenging the criminalisation of the pronouncement of triple talaq, even as it pointed out that certain practices such as dowry managed to survive despite being held invalid and condemned as crimes.
A Bench of Justices N.V. Ramana and Ajay Rastogi issued notice to the government on pleas challenging the constitutionality of the Muslim Women (Protection of Rights on Marriage) Act 2019 , which penalises declaration of triple talaq by Muslim men.
After issuing notice, Justice Ramana had closed the case file, but re-opened it as an afterthought, saying “some people here will be disappointed if we do not ask you questions...” The judge may have referred to the large media contingent in the court room.
Justice Ramana glanced through the file to summarise to senior advocate Salman Khurshid, for the petitioners, that “you are concerned about the criminalisation of triple talaq pronouncement...” Mr. Khurshid confirmed, in reply.
Justice Ramana then carried the question forward, this time asking Mr. Khurshid, “Suppose a religious practice, declared null and void and made an offence, continues to be practised? Dowry, though an offence, is still practised...”
So, the main issue is imprisonment up to three years (prescribed under the Act) for the pronouncement of triple talaq. Secondly, the grant of bail to the husband on the condition that the ‘wronged’ wife is heard first,” Justice Ramana observed.
The petitions include one by Jamiat Ulama-I-Hind , which has said the Act has made triple talaq 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 considered an offence in India.
At best, desertion is a ground for divorce. The Hind said the three-year imprisonment prescribed under the Act is both “disproportionate and excessive”.
The organisation said the law had made the declaration of triple talaq an offence graver than other crimes such as rioting, kidnapping, death by negligence, concealment of birth by secret disposal of body, bigamy, bribery, food adulteration and so on.
Another petition by Samastha Kerala Jamiathul, one of the biggest religious organisations of Sunni Muslim scholars and clerics in Kerala, claimed the sole objective of the new law was “to punish Muslim husbands”.
“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”. Further, the offence is confined only to Muslim husbands.
“It is absurd that for an utterance which has no legal effect, whether spoken by Muslim, Hindu or Christian, it is only the Muslim husband who is penalised with a three-year sentence. Protection of wives cannot be achieved by incarceration of husbands…” Jamiathul, represented by advocate Zulfiker Ali P.S, has contended.
Plea for stay
It had urged the court to stay the operation of the ordinance while questioning the haste with which the government promulgated it.
The petition contends that the Supreme Court has already declared the utterance of triple talaq “null and void”.
A close look at the three separate opinions delivered by the Constitution Bench on August 22, 2017, shows that it was only the minority judgment of the Supreme Court that had directed the government to bring an “appropriate legislation” on triple talaq.
The majority opinions of Justices Rohinton Nariman, U.U. Lalit and Kurian Joseph – which became the law of the land and superseded the minority opinion of the then Chief Justice J.S. Khehar and Justice S. Abdul Nazeer – had declared triple talaq “manifestly arbitrary”, illegal and void.
In short, triple talaq ceased to exist from August 22, 2017.
The majority opinion had overawed the minority view of Justices Khehar and Nazeer by striking down instant talaq as not protected by Article 25 (freedom of religion) of the Constitution and violative of Article 14 (right to equality).