JAMAIT Ulama-i-Hind, an organisation of Islamic scholars, has approached the Supreme Court challenging constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019 also known as Triple Talaq Act.
The new law prescribes maximum imprisonment of three years to a husband who pronounces Triple Talaq upon his wife.
In its petition, JamiatUlama-I-Hind has said that as the pronouncement of talaq by a Muslim husband upon his wife had already been declared void and illegal, no circumstance, whatsoever, existed in the first place that required the enactment of the Triple Talaq law.
It adds, the Supreme Court in Shayara Bano v. Union of India & Ors case did not express any opinion to criminalize the pronouncement of talaq by a Muslim husband. “However, the law under challenge criminalizes the act of pronouncement of talaq by a Muslim husband and makes it a cognizable offence without appreciating that such pronouncement had already been declared unconstitutional and amounted to nullity in the eyes of law,” it argued.
“The act criminalises the pronouncement despite the fact that the marriage subsists even after the said pronouncement”, it stressed.
It deplored the provisions introduced in the Triple Talaq Act whereby by “talaq-e-biddat or any other similar form of talaq by a Muslim man is made a non bailable offence, punishable with imprisonment of up to three years and fine.”
The marriage, according to the petition, is civil contract as per Islamic Law and talaq is only a mode to repudiate the contract. Therefore, imposition of criminal liability for a civil wrong violates the fundamental rights of Muslim men, it added.
“The Triple Talaq Act suffers from internal inconsistency, wherein, on one hand it seeks to protect the rights of married Muslim women and on the other, by criminalizing the utterance of talaq leading to instantaneous divorce, the very object and scope of reconciliation is left out from the wedlock”, the petition complained.
It has further stated: “the Triple Talaq Act in meeting its twin objectives of declaring talaq (leading to instantaneous divorce) as illegal and its pronouncement as a crime, has failed to consider that the illegality of such a pronouncement is res integra and that attracting criminality to such an utterance, assuming but not conceding is cruel, can be covered under other existing legislations like Indian Penal Code, 1860 and the Protection of Women from Domestic Violence Act, 2005.”
Stressing that the Act undermines Articles 14, 15 and 21 of the Constitution of India, the petitioner has asked the apex court to declare the Act as unconstitutional.