Union government defends outlawing of triple talaq in affidavit before Supreme Court

Responding to a plea challenging the Muslim Women (Protection of Rights on Marriage) Act, 2019 that makes triple talaq a criminal offence, the Union Government claimed, among other things, that the law was needed to give effect to the Supreme Court's judgment in Shayara Bano versus Union of India & Ors.

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IN an affidavit filed at the Supreme Court, the Union government has defended the validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019 that considers the utterance of talaq-e-biddat, commonly known as instantaneous triple talaq, by a Muslim husband as a criminal offence. As per this Act, any Muslim husband who communicates talaq orally or in writing three times may be penalised with up to three years of imprisonment.

The government claims that despite the Supreme Court's 2017 judgment in Shayara Bano versus Union of India & Ors declaring the practice of talaq-e-biddat unconstitutional, there had afterwards been reports of divorce by way of talaq-e-biddat from different parts of the country. It contends that the court's decision had not worked out, and thus a need was felt for State action to give effect to the order of the Supreme Court to redress the grievances of victims of illegal divorce.

In addition, the government also contends that Muslim women had no option but to approach the police for redressal of their grievance despite the Supreme Court outlawing the practice of talaq-e-biddat. It says that the police, at their end, were helpless as no action could be taken against Muslim husbands in the absence of punitive provisions in the law.

It is for this reason, the government submits, that the triple talaq law was brought in to prevent the practice of instantaneous triple talaq so as to create a deterrent for those Muslim husbands who were divorcing their wives by way of talaq-e-biddat.

A five-judge Constitution Bench of the Supreme Court, in 2017 by a majority of 3:2, had declared the practice of instant triple talaq unconstitutional.

The Union government thereafter brought in an ordinance in 2018 criminalising the utterance of talaq-e-biddat. Eventually, on July 30, 2019, the Parliament passed   triple talaq law criminalising instant divorce by a Muslim man uttering talaq three times in the presence of his Muslim wife. A total of 303 Lok Sabha members had voted for the passage of the law, as against 82 Lok Sabha members that voted against it, and a total of 99 members of the Rajya Sabha had voted for the law against a total of 84 Rajya Sabha members who voted against it. The Rajya Sabha, by a majority vote, also turned down a demand by opposition parties to refer the Bill to a select committee for scrutiny.

On August 23, 2019, the Supreme Court issued notice to the Union government on a petition challenging the triple talaq law.

Some key features of the triple talaq law are as follows:

• Any pronouncement of triple talaq by a Muslim husband to his wife in any manner, spoken or written, is void and illegal.
• Any Muslim husband who communicates triple talaq orally or in writing may face punishment of up to three years in jail.
• If a Muslim man pronounces triple talaq to his wife, then the woman and her children are entitled to receive an allowance for subsistence. Such an amount can be determined by a judicial magistrate of the first class.
• A Muslim woman is entitled to the custody of her minor children even if her husband has pronounced triple talaq to her.
• The offence of pronouncing instant triple talaq is cognisable if the Muslim woman on whom it is pronounced communicates the information to a police officer.
• The offence is also compoundable if the Muslim woman insists the same, subject to certain terms and conditions that the magistrate may determine.
• A person accused of this offence cannot be granted bail unless an application is filed by the accused after a hearing in the presence of the Muslim woman (on whom triple talaq has been pronounced) is conducted, and the magistrate is satisfied with reasonable grounds for granting bail.