A view of the Supreme Court of India in New Delhi. File
| Photo Credit: R.V. Moorthy
The Union government in the Supreme Court has justified the Central law criminalising triple talaq, saying the “practice legitimised and institutionalised abandonment of wives by their husbands” and was “neither Islamic nor legal”.
A 433-page counter affidavit filed by the Centre in the Court reminded the Court of its own Constitution Bench judgment of 2017 in the Shayara Bano case, which had held triple or instant talaq (talaq-e-biddat) manifestly arbitrary.
The government said all it did with the Muslim Women (Protection of Rights on Marriage) Act, 2019 was make a practice called “manifestly arbitrary” by the Supreme Court a non-bailable criminal offence punishable with three years’ imprisonment.
“Triple talaq was not a private wrong done to one woman. It was a public wrong which militates against the rights of women and the social institution of marriage itself,” the government said.
The Centre said the concept of crime keeps on changing with change in the political, economic and social set up the of the country.
Also read: Five years after Supreme Court’s triple talaq verdict, petitioners living life as ‘half-divorcees’
The 2019 law seeks to criminalise a practice which had neither legal nor religious sanction and discriminatory towards married Muslim women.
The Court said the state could resort to criminal law to preserve the sanctity of the institution of marriage.
“There is no basis to the claim that marriages come under the personal law, and are exempt from the application of the general criminal law… Marriages are a social institution which the state has a special interest in protecting. It is beyond doubt that the state can protect the stability of marriages by resort to the devices of criminal law. Examples are Domestic Violence Act 2005 and Dowry Prohibition Act 1961,” the Centre argued.
The government said criminal sanction was necessary though the act of pronouncing triple talaq by a man to his wife was declared void by the Supreme Court in 2017.
Triple talaq had ceased to exist from August 22, 2017 — the date of the Supreme Court verdict.
“But if the sanctions of the 2019 Act do not exist, the prohibition on criminal conduct [triple talaq] itself would become a dead letter to be freely disregarded,” the affidavit reasoned.
The government said the 2019 Act was required as Muslim men continued the practice of triple talaq despite the Supreme Court judgment of 2017.
The counter by the government was in response to petitions filed in the Supreme Court by organisations, including Jamiat Ulama-i-Hind, which have challenged the 2019 Act.
They argued that while a Muslim would suffer imprisonment for pronouncing triple talaq, a man from another faith could desert his wife without fearing punishment. Desertion was at best a ground for divorce.
The organisation said the law has made the declaration of triple talaq an offence graver than other crimes like rioting, kidnapping, death by negligence, concealment of birth by secret disposal of body, bigamy, bribery, food adulteration, etc.
Another petition by Samastha Kerala Jamiathul, one of the biggest religious organisation of the Sunni Muslim scholars and clerics in Kerala, claimed the sole objective of the new law was “to punish Muslim husbands”.
