Criminalisation of Triple Talaq | Day 1: Union to submit details of cases registered under the Muslim Women Act, 2019
Criminalisation of Triple TalaqJudges: Sanjiv Khanna CJI, P.V. Sanjay Kumar J
Today, a bench of Chief Justice Sanjiv Khanna and Justice P.V. Sanjay Kumar started hearing the challenges to the constitutionality of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (MWA), which makes triple talaq a non-bailable and cognisable offence punishable with a fine and up to three years of imprisonment. The Act was legislated in the aftermath of the Supreme Court’s 2017 decision which criminalised the practice of triple talaq.
The Court directed the Union to submit details about the number of cases registered under the Act so far and a record of the FIRs registered in rural regions of the country. Petitioners argued that the MWA discriminates against Muslim men by placing triple talaq in the criminal regime when similar acts such as ‘abandonment’ under other personal laws were dealt with under civil law. They also reasoned that they had challenged the entire Act because its provisions were closely connected.
As Solicitor General Tushar Mehta recited a couplet on the injustice of Triple Talaq, Chief Justice Khanna interrupted him to reiterate that the petitioners were not arguing in favour of triple talaq, which is a settled constitutional question, but only against its criminalisation.
The Chief also stated that the cause title of the case would be changed and the names of the petitioners would be deleted, suggesting that the new cause title may be Re: Constitutionality of Muslim Women (Protection of Rights on Marriage) Act, 2019.
Background
On 22 August 2017, a five-judge Constitution Bench comprising then Chief Justice J.S. Khehar with Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer ruled that the practice of talaq-e-biddat was unconstitutional.
On 19 September 2018, the President passed the Muslim Women (Protection of Rights on Marriage) Ordinance 2018, which made the practice of talaq-e-biddat a criminal act, punishable with up to three years imprisonment. Subsequently, in July 2019, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. In August 2019, the Jamiat Ulama-I-Hind, Samastha Kerala Jamiathul Ulema, and the President of the Rashtriya Ulema Council challenged this Act in separate petitions at the Supreme Court.
Petitioners challenged Sections 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) and 7 (Triple talaq is a cognisable offence, compoundable offence, and non-bailable offence) of the MWA.
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.
They argued that the severe and stringent punishment imposed on Muslim husbands under Sections 4 and 7 is irrational and arbitrary and lacks an adequate logical nexus with the purported aims of this punishment. They submitted that far less stringent punishment is attached to more serious crimes such as kidnapping or death by negligence—both of which are bailable offences.
The petition by Jamiat Ulama-I-Hind 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.
Petitioners also pointed out that 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 and violates the right to equal protection of the law.
Court: Union must submit details of the cases registered under the MWA
Chief Justice Khanna, directed the Union to submit the list and details of cases, which have been registered since the enactment of the MWA, till today, under Sections 3 and 4 of the MWA. While Section 3 declares triple Talaq to be void and illegal, Section 4 lays down the punishment of imprisonment up to three years and a fine against Muslim men.
He also directed the Union to submit details of the First Information Reports registered under these two provisions, particularly in rural regions. Mehta, agreeing to submit an affidavit in this regard, noted that “this statistic would be relevant” as the data might reveal either of two things:
1. That the practice is triple talaq is still prevalent.
2. That Muslim women are not willing to come forward to register such cases.
Senior Advocate M.R. Shamshad, for the petitioners, noted that the data revealed would be useful when the written submissions are prepared by the petitioners. At this juncture, noting that neither party had filed their written submissions in the case, CJI Khanna directed them to do so.
Court: Why is the whole Act under challenge?
CJI Khanna questioned the petitioners why they had challenged the entire Act and not specific provisions of MWA, such as Sections 3 and 4. Advocate Nizam Pasha, on behalf of the petitioners, responded that the provisions were intricately connected. He explained that since triple talaq does not result in divorce following Shayra Bano, if the provision which makes the utterance an offence is found unconstitutional, then the subsequent provision dealing with custody under Section 6 becomes otiose.
Petitioners: The Act violates Muslim men’s right to equality
Pasha argued that the criminalisation of the act of talaq-e-biddat was similar to criminalising the “utterance of words”. He contended that “most of such utterances and emotional violences” were already covered under the Protection of Women from Domestic Violence Act, 2005 (DVA). Thus, the additional criminalisation under the MWA was unnecessary. Chief Justice Khanna, however, was unconvinced. He noted that “name calling” was different from triple talaq and therefore, the latter is likely not covered under the DVA.
Pasha then argued that ‘abandonment’ or desertion of the wife was not treated as a criminal offence in the context of any other personal law. He was essentially contending that since the act of utterance of ‘talaq-talaq-talaq’ itself was void after Shayra Bano, the act being criminalised was the desertion following the utterance.
The Chief responded that there were statutory enactments for Hindus (such as the Hindu Marriage Act,1955, which covered Sikhs, Jains and Buddhists) and Christians which dealt with similar issues. However, Pasha maintained that those enactments only dealt with divorce
Shamshad argued that, generally, even in case of offences registered under the Indian Penal Code,1860 (such as a non-Muslim physically assaulted wife filing an offence under the IPC against her husband), FIRs are not registered immediately. Instead, first, a conciliation process is adopted. “But if somebody has said ‘talaq’ three times, he will go inside [prison],” he pointed out.
“It’s uncivilised to sever a relationship [in such a manner]” Mehta interjected.
Shamshad quickly retorted, “To beat somebody, it’s not?”
The case is scheduled to be heard in the week commencing 17 March 2025.