The government reasoned it had to introduce a law criminalising triple talaq as Muslim men continued the practice in spite of a Supreme Court judgment declaring it illegal.
The government’s 177-page affidavit recently filed in the apex court came in response to a series of petitions which have challenged the constitutionality of the Muslim Women (Protection of Rights on Marriage) Act 2019, which makes the pronouncement of triple talaq an offence punishable with three years’ imprisonment.
The setting aside of triple talaq by the Supreme Court has not worked as any deterrent in bringing down the divorces by this practice among certain Muslims. Therefore, a need for State action was felt to redress the grievances of victims of this illegal divorce… Accordingly, to protect the rights of married Muslim women, the Muslim Women (Protection of Rights) Act was brought,” the Centre said.
The affidavit reasoned that “the legislature alone, headed by the government of the day, can determine what is and what is not good for the people of the land”.
Countering arguments that the government went overboard to criminalise triple talaq when the court had only made it “void”, the government said it was not for the court to say “less than what was done might have been enough”. It was “irrelevant” to argue that the provisions of the Act was more drastic than the occasion demanded.
The petitions against the 2019 Act include one by Jamiat Ulama-i-Hind, which has argued that while a Muslim man would suffer imprisonment for pronouncing triple talaq, a non-bailable offence, a man from another faith could desert his wife without fearing punishment. Desertion was at best a ground for divorce. The organisation said the law has made the declaration of triple talaq an offence graver than other crimes like rioting, kidnapping, death by negligence, concealment of birth by secret disposal of body, bigamy, bribery, food adulteration, etc.
Another petition by Samastha Kerala Jamiathul, one of the biggest religious organisations of the 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’,” it contended.
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 which had directed the government to bring an “appropriate legislation” on triple talaq.