The Supreme Court on Friday declined to examine the legality of an ordinance, promulgated on September 19, making the declaration of instant triple talaq by a Muslim husband of his wife a crime.
A Bench led by Chief Justice Ranjan Gogoi said two months have already passed since the promulgation of the ordinance, which has a life of only six months unless ratified by the parliament.
The Chief Justice left it to the parliament to debate the constitutionality of the ordinance, saying the Winter Session is shortly to commence.
“We don’t like to interfere...” Chief Justice Gogoi addressed the lawyers for Samastha Kerala Jamiathul, one of the biggest religious organisation of the Sunni Muslim scholars and clerics in Kerala, which had challenged the ordinance.
Senior advocate Raju Ramachandran said the very promulgation of the ordinance is a “fraud on the Constitution.” But the Chief Justice Gogoi restrained the line of argument, saying it was not necessary to “go so high.”
The court allowed the petitioner to withdraw the plea.
The Jamiathul said the only objective of the ordinancee is “to punish Muslim husbands.”
The Women (Protection of Rights on Marriage) Ordinance, 2018 was notified on September 19 makes instant triple talaq a penal offence.
Section 4 imposes a maximum sentence of three years imprisonment when a Muslim husband pronounces talaq thrice consecutively. The offence is cognizable and non-bailable.
“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'," the petition contended.
“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… the intent behind the ordinance is not abolition of triple talaq but punishment of Muslim husbands,” Jamiathul, represented by advocate Zulfiker Ali P.S, contended.
It 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”. If triple talaq has thus no legal effect, why should the government go ahead and make it an offence now?
There is no informed assessment or study that forms basis for the Centre to have created this offence. Some isolated instances of the practice have occurred despite the judgment of Supreme Court does not imply that a penal provision is required to be immediately enacted to prevent the practice.
The petition points to how Sections 5 and 6 of the ordinance create a “classification among married women who have suffered triple talaq and those who have not.
It said a truly welfare-oriented legislation would promote amicable resolution of matrimonial disputes, regardless of community.
