Writ Petitions SummaryCriminalisation of Triple Talaq
Background and Issue
In 2017, in Shayara Bano v Union of India, the Supreme Court held that the practice of triple talaq was unconstitutional. In 2019, the government passed the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalised the utterance of triple talaq as a means to get a divorce, and made it a cognisable and non-bailable offence.
The table below shows the effect of each section of the impugned Act.
|3||Declaration of talaq is void and illegal|
|4||A Muslim husband who pronounces talaq shall be punished with imprisonment of up to 3 years, and a fine|
|5||A Muslim woman upon whom talaq is pronounced is entitled to child support as determined by the court|
|6||A Muslim woman upon whom talaq is pronounced is entitled to custody of minor children|
|7||Triple talaq is a cognizable offence, compoundable offence, and non-bailable offence|
This post summarises, in plain English, three PILs filed in response to this Act challenging its constitutional validity. The first of these PILs was filed by the Jamiat Ulama-I-Hind, a group of Islamic Deobandi scholars. The second was filed by the Samastha Kerala Jamiathul Ulema, a scholarly organisation in Kerala. The third was filed by Mr. Amir Rashadi Madani, the president of the Rashtriya Ulama Council.
All three petitions have the same prayers—that the Supreme Court should declare the Act unconstitutional and in violation of several fundamental rights including Articles 14, 15, and 21. All the petitioners have broadly similar claims, i.e. the act is: (i) redundant, (ii) excessive and disproportionate, (iii) irrational and arbitrary, (iv) violative of Article 21 in a manner that is discriminatory and unequal, and (v) thereby also violative of Articles 14 and 15. Although the arguments in each PIL overlap, there are also certain differences.
The petitioners argue that the Act in general, and S.3 in particular, are redundant because the Supreme Court had already held that the pronouncement of triple talaq was null and void. Thus, this Act does not contribute to the Court’s judgment. The Samastha Kerala petition refined this argument by arguing that if Shayara Bano rendered these words meaningless and incapable of causing divorce or inflicting any harm, there was no good reason for their utterance to be criminalised at all.
This Act and the punishment it imposes are argued to be excessive and disproportionate—i.e. the violations of the fundamental rights caused by the Act are not justified by the object it seeks to achieve. As the Jamiat Ulama petition argues: if the objective is to protect the rights of Muslim women and to preserve the sanctity of marriage, this Act provides no scope for reconciliation or cordiality, with S. 5 and 6 forcing the breakdown of the marriage and the family unit.
It is also argued that the severe and stringent punishment that S. 4 and 7 seek to impose on Muslim husbands is irrational and arbitrary, and lacks an adequate logical nexus with the purported aims of this punishment. Reference is also made to the far less stringent punishment attached to more serious crimes such as kidnapping or death by negligence—both of which are bailable offences. The petitioners argue that crime and punishment must be ‘two sides of the same coin’ and that the punishment must thus adequately reflect the harm caused by the act, or at least the revulsion felt by the majority of citizens towards the perpetrator’s actions. Indeed, the Jamiat Ulama-I-Hind petition also argues that desertion and divorce plague all communities, and there has been no attempt made by the government to justify why this particular form is being criminalised or punished to this extent. Thus, they argue that the law is manifestly arbitrary, and as the Samastha Kerala petition puts it, entirely lacking a determining principle.
Following from these arguments that the law is unreasonable and disproportionate, the petitioners refer to the case of Maneka Gandhi, where the Court held that any law that results in the curtailment of the rights enshrined under Article 21 must be ‘fair, just, and reasonable’. The petitioners contend that the relevant statute fails to meet this threshold, and is manifestly arbitrary and unreasonable. Furthermore, the Samastha Kerala petition argues that the Act infringes on the right to substantive due process under Article 21, which was recognized in Mohd Arif. The petition filed by Mr. Madani also contends that this Act strips Muslim couples of their dignity, which is also protected by this Article.
The claims under Articles 14 and 15 rest on the fact that only Muslim husbands are targetted under criminal law for the practice of triple talaq. While all forms of marriage and divorce for other religions remain within the domain of civil law, Islamic divorce has been brought into the realm of criminal law, which amounts to discrimination on the basis of religion (Art. 15) and violates the right to equal protection of the law (Art. 14). The Samastha Kerala petition takes this argument a step further and argues that S. 5 and 6 impose an artificial classification upon women—those who have and have not been told the three words of talaq. This artificial classification, they argue, attempts to unlawfully lend meaning to words which had been stripped of meaning in Shayara Bano, and create an illegitimate separate class of women—an action which is violative of the Article 14 rights of all Muslim women.
Finally, the Samastha Kerala and Jamiat Ulama petitions emphasise the nature of a Muslim marriage: a civil contract which is firmly in the realm of civil law. As such, for the courts to intervene and criminalise an action within this contract on a strict liability basis, is to blatantly trample on the respect that must be accorded to private law. They assert that where Shayara Bano declared a means of termination of the contract to be invalid, this Act attempts to use this declaration as a means to invoke criminal liability. Indeed, they point out that the Act itself defers to sharia law or civil law definitions of marriage, demonstrating that it recognizes the realm of law in which such matters belong.
Finally, the Samastha Kerala petition asserts that the creation of this Act under Parliament’s extraordinary powers under Article 123 is an improper exercise of these powers. This power should only be used if Parliament has good reason to believe that a practice is continuing unabated. Given that Parliament did not even attempt to inquire into the matter, combined with the evidential difficulties in compiling accurate data on the same, this good reason did not exist.
The Jamiat Ulama and Samastha petitions differ sharply on one point— while the former does not doubt that the government’s actions were taken in good faith, the latter challenges the motives behind the government’s intentions. The Samastha Kerala petition asserts that the intent of this Act is not to protect Muslim women or to abolish triple talaq, but instead to punish Muslim husbands arbitrarily.
Thus, while the petitions all have the same prayers and make similar claims, they are based on slightly different arguments. However, they all argue that this law’s unjust and unreasonable infringement of rights protected by Article 21 cannot stand. Furthermore, they agree that the fact that this infringement only affects a specific religious community is a clear violation of Articles 14 and 15 of the Constitution.