New Delhi: The Supreme Court on Friday agreed to examine the challenge to the provisions in the Muslim Women (Protection of Rights on Marriage) Act, 2019, that criminalises the instant triple talaq and provides for the imprisonment of husband for divorcing wife and the retrospective applicability of the law.
Seeking the Centre’s response on multiple petitions challenging different aspects of the Muslim Women (Protection of Rights on Marriage) Act, 2019, also known as triple talaq law, the bench of Jusrice N.V.Ramana and Justice Ajay Rastogi referring to child marriage and dowry asked if a practice having no sanction of law still prevails why can’t Parliament make a law to curb it. The court has issued notice both on declaring instant triple talaq a criminal offence and retrospective applicability of the law.
The court will examine can a legislation make a practice, declared void by the top court, an offence; the retrospective application of law and while considering bail plea by the husband, accused of pronouncing instant triple talaq, wife has to be heard.
Justice Ramana said that the provision that wife has to be heard while considering husband’s plea bail was akin to the provision of Prevention of Money Laundering Act.
The top court sought Centre’s response on petitions filed by Jamiat Ulama-i-Hind, Kerala- based Samastha Kerala Jamaithul Ulema and others — all challenging the validity of the triple talaq law. Addressing the court, senior counsel Salman Khurshid said that the top court constitution bench has already held instant triple talaq as void and with Parliament enacting the Muslim Women (Protection of Rights on Marriage) Act, 2019, amounts to declaring it null and void once again.
The petitioner organisations Jamiat Ulama-i-Hind, Samastha Kerala Jamaithul Ulema and others have sought the declaration that the Muslim Women (Protection of Rights on Marriage) Act, 2019 notified on July 31, 2019 is violative of Articles 14, 15, 21 and 123 of the Constitution of India and thus unconstitutional and unenforceable.
Seeking the stay of the operation of the Muslim Women (Protection of Rights on Marriage) Act, till the plea is decided by the court, the petitioners have contended that the law directed at Muslim community has national ramifications, which, if not checked, may lead to “polarization and disharmony” in society. .
“The Act has introduced penal legislation, specific to a class of persons based on religious identity. It is causative of grave public mischief, which, if unchecked, may lead to polarization and disharmony in society”, says the petition by Samastha Kerala Jamaithul Ulema invoking Article 32 of the constitution for protecting the fundamental rights.
The intent behind the Act, the petition says is not “abolition of Triple Talaq but punishment of Muslim husbands” as Section 4 of the Muslim Women (Protection of Rights on Marriage) Act provides for 3 year sentence when a Muslim husband pronounces Triple Talaq.
Assailing the provision that criminalizes the instant triple talaq, the petition by Jamiat Ulama-I-Hind, says, “Needless to say, that the Act criminalizes the pronouncement despite the fact that the marriage subsists even after the said pronouncement.”
It has described as “ill-conceived” and “excessive and disproportionate”, the provision providing for imprisonment upto three years qarguing that sentence in case of other serious offences is much less.