Triple Talaq Ordinance challenged in Supreme Court

A petition has been filed in the Supreme Court challenging the validity of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 (‘ordinance’) which seeks to criminalize the practice of Triple Talaq.

The petition has been filed by the Samastha Kerala Jam’eyyath ul-Ulama, a religious organisation of the Sunni Muslim scholars and clerics based in Kerala.

The petitioner has prayed that the Triple Talaq ordinance be struck down as it violates Articles 14, 15 and 21. It is further contended that the ordinance was promulgated by a misuse of Article 123 of the Constitution

As argued in the petition, after the Supreme Court’s declaration that instantaneous triple talaq is unconstitutional last year, there was no need for a separate ordinance criminalising the now inconsequential phrase. The motive of the Central Government has been put to question given the timing of the ordinance.

“Despite the Central Government having had ample opportunity to abolish the practice before the judgment in Shahyara Bano (supra), if not for 1400 years, at least the 67 years of the existence of the Constitution preceding Shahyara Bano (supra), the Government chose to await the adjudication in Shahyara Bano …

… It is strange if not absurd that within months of the judgment in Shahyara Bano (supra), in hot haste, there is an ordinance banning Triple Talaq under the emergent provision of Article 123. A practice that was around for only about 1400 years and now, in any case derecognized by virtue of Shahyara Bano (supra), did not require the Government’s emergent intervention under Article 123.”

After the Shayara Bano judgment, triple talaq can no longer be used to annul a marriage. Therefore, it is pointed out, the “declaration” under Section 3 of the ordinance  that triple talaq is void is redundant.

“The marriage survives, regardless of such utterance. It is difficult to imagine why the mere utterance of meaningless words should attract a three year sentence for the husband.”

The petitioner goes on to contended that the real intent behind the ordinance is to punish Muslim husbands, rather than protect Muslim women.

“The real thrust for the Ordinance is thus not the reiterative (and futile) declaration contained in Section 3 thereof but the punishment prescribed by Section 4. The intent behind the Ordinance is not abolition of Triple Talaq but punishment of Muslim husbands…

…There is no benevolence or welfare apparent in this Ordinance. Abolition of Triple Talaq was not a surviving cause for legislative action. Protection of wives cannot be achieved by incarceration of husbands.“

In this backdrop, it is argued that criminalising only Muslim men for the utterance of such inconsequential phrases would violate Articles 14, 15 and 21 of the Constitution. The petitioner has also contended that the provisions of the ordinance would fail the test of manifest arbitrariness, which was propounded by Justice Rohinton Nariman in the Shayara Bano case.

The other contentious issue highlighted is the misuse of Article 123 of the Constitution for introducing the ordinance. Article 123 is invoked to introduce an ordinance where there is a need for immediate action. In this case, however, the petitioner contends that there were no such emergent reasons warranting the introduction of an ordinance.

To buttress this argument, the petitioner has also attacked the reasons provided in the ordinance for its promulgation. The Government has cited the unabated prevalence of the practice of talaq-e-biddat (instantaneous triple talaq) as the basis for promulgating the ordinance. However, the petitioner argues,

“To declare that something is “unabated” despite judgment one must: (a) know how pervasively the practice was committed, prior to the judgment; (b) ascertain how far has the judgment impacted or prevented occurrences, since its pronouncement.“

The petitioner proceeds to argue that it is highly unlikely that the Government had sufficient information on either of these parameters to conclude that the practice continued unabated.

“…it is doubtful that anybody, including the Government, had any idea or understanding of the national statistical occurrence of Triple Talaq prior to the judgment in Shahyara Bano (supra) … As far as (b) above is concerned, it is impossible to ascertain how far has the practice not been committed, after the judgment in Shahyara Bano (supra). After all, a non- occurrence of an event is not a recorded fact.”

The Government’s claim that the practice continues unabated has thus been dismissed as being misleading, inapt and improper and entirely whimsical by the petitioner.

While the primary challenge has been mounted against Sections 3, 4 and 7 of the Ordinance,  the petitioner has prayed that the entire ordinance be struck down since these provisions are not severable from the others.

This petition comes close in the heels of a similar petition which was filed in the Bombay High Court, challenging the Triple Talaq Ordinance as being “illegal, null, void, unreasonable and arbitrary.”

The Muslim Women (Protection of Rights on Marriage) Bill 2017 was passed in the Lok Sabha in December last year. However, the Bill did not see the light of day after opposition parties in the Rajya Sabha expressed reservations regarding some provisions.

The Centre therefore took the Ordinance route, introducing a few changes to the 2017 Bill.

One of the changes introduced is that the police can lodge an FIR only if approached by the victim, her blood relations, or people who become her relatives by virtue of marriage. Further, the offence has now been made non-compoundable, where a magistrate can use his powers to settle the dispute.

Read the Petition: