22 August 2019
New Delhi: Jamiat Uilama-I-Hind, a Muslim body, moved the Supreme Court on Thursday challenging the constitutional validity of the triple talaq law -- The Muslim Women (Protection of Rights on Marriage) Act 2019.
The petitioner is an organisation involved in philanthropic activities, including protection of Islamic culture.
The petition, filed through advocate Ejaz Maqbool, claims that under the Act, "talaq" has been defined to mean "talaq-e-biddat" or any other similar form of talaq 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 Supreme Court vide its judgment dated August 22, 2017 rendered in Shayara Bano v. Union of India," said the petition stating 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 petitioner contended that the Act criminalises the pronouncement despite the fact that the marriage subsists even after such pronouncement.
The triple talaq law was passed by the Centre on July 31, which criminalises the pronouncement and prescribes a punishment of up to 3 years' imprisonment.
The petition claims that marriage as per Islamic law is a civil contract and talaq was a mode to renounce the contract. Therefore, criminal liability cannot be imposed on Muslim men for a civil wrong, which is also a violation of fundamental rights.
The petition claimed that there are several more grave offences which are not punishable with stringent punishment and are bailable.
"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", said the petition.
The petition urged the court to consider that the three pronouncements, like other Islamic countries, made instantaneously should be regarded only as one pronouncement instead of criminalizing it altogether.
The petitioner has 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 arise circumstances where the custody of the children is handed over to the mother even though that is not in the best interest of the children", said the petition.