Samastha Kerala Jamiathul, one of the biggest religious organisation of the Sunni Muslim scholars and clerics in Kerala, on Tuesday moved the Supreme Court challenging the constitutionality of the triple talaq ordinance, saying its only objective is “to punish Muslim husbands”.
The Women (Protection of Rights on Marriage) Ordinance, 2018 notified on September 19 makes triple talaq a penal offence.
Section 4 imposes a maximum sentence of three years imprisonment when a Muslim husband pronounces triple talaq. The offence is cognisable 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”.
“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… 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.
