New law on triple talaq challenged in SC, Delhi HC

The newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence was challenged in the Supreme Court on Friday.

A petition challenging the new legislation was also filed in the Delhi high court on Friday.

A day after President Ram Nath Kovind gave assent to The Muslim Women (Protection of Rights on Marriage) Act, 2019, 'Samastha Kerala Jamiathul Ulema', a religious organisation of Sunni Muslim scholars and clerics in Kerala, has moved the top court seeking to declare it as unconstitutional.

'The Act has introduced penal legislation, specific to a class of persons based on religious identity. It is causative of grave public mischief, which, if unchecked, may lead to polarisation and disharmony in society,' the plea said.

The organisation, claiming itself to be the largest Muslim organisation in Kerala in terms of number of followers, submitted that the legislation is class specific to Muslims and the intent behind the Act is not abolition of triple talaq but punishment of Muslim husbands.

'Section 4 imposes a maximum sentence of 3 years imprisonment when a Muslim husband pronounces Triple Talaq. The offence is cognizable and non-bailable as per Section 7,' the plea said.

It claimed that the Act is violative of Articles 14, 15 and 21 of the Constitution and thus, is liable to be struck down.

The plea said that if the motive was to protect a Muslim wife in 'an unhappy marriage', no reasonable person can believe that the means to ensure it is by putting an 'errant husband in jail for three years and create a non-bailable offence for merely saying 'Talaq Talaq Talaq''.

The plea in the Delhi HC was filed by an advocate who contended that since triple talaq has been declared as void, the Act of its pronouncement cannot be construed to be a criminal offence or even as a simple wrong or a civil wrong.

The petition filed by lawyer Shahid Ali is likely to come up for hearing next week.

Referring to the provisions of the law, which declared pronouncement of 'triple talaq' as a non-bailable offence punishable with three years imprisonment, the plea said this will shut down all rooms for compromise between the husband and wife.

The petitioner alleged that the intentions of central government are 'mala fide and ultra-vires' of the Constitution as well as the Supreme Court's judgment declaring instantaneous and irrevocable divorce pronounced by a Muslim husband as void and illegal.

The plea claimed that there could be misuse of criminalisation of 'triple talaq' as the Act does not provide for a mechanism to ascertain the truthfulness of the allegations of such pronouncement.

It said criminalising triple talaq violates principles of natural justice, the fundamental rights of citizens.

It sought to declare that Sections 4 & 7 of The Muslim Women (Protection of Rights on Marriage) Act, 2019 are in violation of Articles 14, 15, 21 & 25(2) of the Constitution and are liable to be set aside.

The new law makes 'talaq-e-biddat' or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband void and illegal.

It makes it illegal to pronounce talaq three times -- spoken, written or through SMS or WhatsApp or any other electronic chat -- in one sitting.

'Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal,' the law says.