The Supreme Court on Friday issued a notice to the Centre on a plea challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019, that criminalises ‘triple talaq’, filed by the Muslim Advocates Association.

A bench headed by Justice NV Ramana has tagged the fresh petition with other pleas challenging the constitutional validity of the law. The other three petitions were filed by Samastha Kerala Jamaiathul Ulema, Sayeed Farooq and Jamait Ulama-i-Hind.

As per the law, the practice of instant divorce through triple talaq among Muslims is now a punishable offence that entails imprisonment of up to three years.

Muslim Advocates Association’s counsel Kamlesh Kumar Mitra said that the new law violates the Constitutional rights and said it has immediate propensity to deprive Muslim men and women of their fundamental rights, therefore it is unconstitutional and sought a stay on the Muslim Women (Protection of Rights on Marriage) Act.

Earlier Jamiat Ulaima-i-Hind has said the new law defined “talaq” to mean “talaq-e-biddat” or something similar having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

“Pertinently, such a form of divorce had already been declared unconstitutional by the Supreme Court vide its judgment dated August 22, 2017 rendered in Shayara Bano v. Union of India,” said Jamiat Ulaima-i-Hind’s petition, adding that the top court did not express any opinion to criminalise the pronouncement of talaq by a Muslim husband.

“Therefore, the pronouncement of talaq by a Muslim husband upon his wife had already been declared void and illegal, as a result no circumstances were to exist, which lead to the enactment of the Act,” the petition added.

The petitioner contended that the Act criminalises the pronouncement despite the fact that the marriage subsists even after such pronouncement.
The petition further claimed that because the marriage according to Islamic law is a civil contract therefore divorcing a wife can’t be a criminal offence, as talaq is a mode to annul the contract. Therefore, criminal liability for a civil offence is violation of fundamental rights.

It also claimed that there are several more grave offences, which are not punishable with stringent punishment and are bailable.

The petition said, “In fact, desertion of a wife by the husband is not even an offence. This clearly shows that the provisions qua criminality of the pronouncement of instantaneous talaq are disproportionate and excessive.”
The petition urged the court to consider that the three pronouncements made instantaneously should be regarded only as one pronouncement, like in other Islamic countries, instead of criminalising it altogether.

The petitioner also disputed Section 6 of the Act, which confers the right of custody of minor children on a Muslim woman.

“It is submitted that if this provision is not stayed immediately, there might lead to circumstances where the custody of the children is handed over to the mother even though that is not in the best interests of the children,” said the petition.

The “triple talaq bill was passed by the Centre on July 31. After the Lower and the Upper House passed the Triple Talaq Bill, President Ram Nath Kovind on August 1, gave his go-ahead which made the practice of giving instant triple talaq a criminal offence.

The Supreme Court had on August 2017 declared “triple talaq” unconstitutional and in violation of Article 14 of the Indian Constitution, which provides for equality before the law and directed the government to enact a law on the issue.