Legislature can make the practice of triple talaq a criminal offence even though courts have declared it null and void, Delhi HC’s prima facie view

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15 Oct 2020, 4:05 pm

The Delhi High Court has said merely because triple talaq has been declared void and illegal, it does not mean that the legislature could not have made the continuation of such a practice a criminal offence. It added these are its prima facie view.

The Court was hearing a plea filed by one Nadeem Khan seeking to declare Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 commonly known as Triple Talaq law, unconstitutional and void.

Section 4 of the Triple Talaq law provides that any Muslim husband who pronounces talaq-e-biddat upon his wife will be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

Since the validity of Triple Talaq law is pending consideration of the Supreme Court, the High Court adjourned the plea sine die in anticipation of the apex court's judgment. It though issued the notice to the Centre in the petition.

However, the High Court heard the arguments of the petitioner on his application for interim relief, seeking a stay on the inquiry, trial and FIRs in police stations within the territory of Delhi, till the pendency of his plea challenging the validity of the Triple Talaq law.

LtoR: Justice Vipin Sanghi and Justice Rajnish Bhatnagar.

Rejecting the interim request, a bench of Justices Vipin Sanghi and Rajnish Bhatnagar said the petition is not in the nature of a PIL and thus for the petitioner to seek a general relief in respect of all cases where Section 4 of Triple Talaq law may be invoked, is not permissible.

The bench also rejected the prayer seeking to place the plea before a larger bench observing that there was no provision either in the Constitution or in any other law, which required them to place the matter before a larger bench at this stage.

Tarun Chandiok, the advocate for the petitioner, submitted that once triple talaq had been rendered void and illegal, there was no justification for criminalizing the pronouncement of triple talaq since such triple talaq would have no legal effect on the status of a Muslim marriage.

The Court, however, said a Legislation was presumed to be valid, unless it was declared to be invalid, or unconstitutional by a Competent Court, and was struck down.

"Prima facie it appears to us that the object of Section 4 of the aforesaid Act is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.", the Court said.

It thus declined to grant any interim relief.