The All India Muslim Personal Law Board (AIMPLB) filed a plea in the Supreme Court on Monday challenging the law criminalising instant triple talaq. The Muslim Women (Protection of Rights on Marriage) Act, 2019 makes talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband void and illegal.
It makes it illegal to pronounce talaq three times in spoken, written or through SMS or WhatsApp or any other electronic chat in one sitting. Any Muslim husband who pronounces the illegal form of talaq upon his wife is to be punished with imprisonment for a term which may extend to three years, and also be liable to fine, it says.
The plea by AIMPLB and Kamal Faruqui has challenged the Constitutional validity of the Act on the ground that it is manifestly arbitrary and offends Articles 14, 15, 20 and 21 of the Constitution and makes unwarranted/wrongful interference in the Muslim Personal Law as applicable to Hanafi Muslims.
“The impugned Act is a criminal statute having adverse impact on the life and personal liberty of those on whom penal consequences are to be visited. It is the elementary principle of law that any act or omission which is dealt with penal consequences should be defined with accuracy and precision.”
“A Muslim husband whose act or omission may be visited with penal consequences must have fair notice of ingredients of act or omission that is declared criminal so that such person can organize his affairs in such a way to avoid any conflict with law,” the plea said.
Since pronouncement of Triple Talaq in one sitting has already been declared to be unconstitutional and its practice set aside, such utterance has no legal/civil consequence, it said.
“Consequently, despite such utterances, marriage survives. Therefore, it was totally redundant and irrational to declare statutorily the practice of talaq-e-biddat as void.”
“Secondly, section 3 of the Impugned Act also suffers from internal contradiction because if any act which is declared void has no existence in the eyes of law and it is redundant and contradictory to declare non-existent act illegal. The section therefore, suffers from manifest arbitrariness as it makes provision of law which is totally unnecessary,” the plea said.
The criminalisation of Triple Talaq was opposed by Asaduddin Owaisi, MP from the Opposition All India Majlis-e-Ittehadul Muslimeen party, who said the new law was another attack on Muslim identity under the ruling BJP, which has been in power since 2014.
In 2017, the top court had struck down the practice of instant triple talaq calling it unconstitutional. The Act was passed by Parliament on July 30 this year. The top court had earlier agreed to examine the validity of the newly enacted law on a batch a of petitions which sought to declare the Act as unconstitutional.