Petition filed in Bombay High Court challenging Triple Talaq Ordinance

A petition has been filed in the Bombay High Court challenging the validity of The Muslim Women (Protection of Rights on Marriage) Ordinance, which seeks to criminalize the practice of Triple Talaq, as per news reports.

Filed by Masood Ansari and four others, the petition claims that the provisions making the practice of instant Triple Talaq a criminal offence are “illegal, null, void, unreasonable and arbitrary”.

Specifically, Sections 4 and 7 of the Ordinance have been challenging as being ultra vires the Constitution of India. Section 4 invites a prison sentence that could go up to three years, as well as a fine. Section 7 makes the offence cognizable and non-bailable.

As per the petition, the Ordinance states that despite the Supreme Court deeming the practice of Triple Talaq as unconstitutional, the said practice is still continuing unabated. This statement, the petition contends, is not backed by any statistical evidence.

It is further contended that the President’s power to promulgate ordinances under Article 123(1) was misused in this case, as there were no circumstances that made it necessary for him to take immediate action.

“The absence of any subjective satisfaction recorded by the Hon’ble President in the impugned ordinance, renders said impugned ordinance null and void. Therefore, the exercise of powers under Article 123 (1) of the Constitution of India by the Hon’ble President itself is unreasonable, highly arbitrary, prejudicing particular section of the Indian citizens viz. the Muslim religion husbands.”

The petition further states that the Ordinance is violative of Articles 14 and 25 of the Constitution, as it selectively targets husbands belonging to the Muslim religion.

Speaking to Bar & Bench, Tanveer Nizam, the lawyer appearing for the petitioners, said,

“The impunged Ordinance cites the order of the Apex Court in the Shayara Bano case. However the Supreme Court in this order has not set aside the inherent descretion given to a Muslim husband, rather it appropriately sets aside the practice of Triple Talaq.

Furthermore, there is no criminalization/arrest attached to pronouncement of divorce in any other religions/beliefs. Then what has prompted this Ordinance which will have an adverse impact across India on Muslim husbands only?”

Therefore, it has been prayed that Sections 4 and 7 of the Ordinance be set aside as being unconstitutional. In the interim, a stay on the provisions pending the disposal of the petition has also been prayed for.

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.

As per the Bombay High Court website, the matter will be heard by a Division Bench of Justices Shantanu S Kemkar and SV Kotwal on October 1.

Read the petition: