A writ petition has been filed before the Bombay High Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 promulgated on September 19, 2018.
The petition, that seeks to quash the said ordinance, has been filed by a group of citizens comprising ex-municipal councillor Masud Ansari, Rising Voice Foundation, an NGO, and advocate Devendra Mishra.
The petitioners alleged that the said ordinance is “illegal, null, void, unreasonable, arbitrary to the extent it seeks to criminalize the breach of civil contract in the form of Muslim marriage and further seeks to put the Muslim husbands to face criminal prosecution, imprisonment and further to the extent of such imprisoned Muslim husband (in judicial custody) not permitted to be freed or granted bail till the aggrieved Muslim wife is heard by the Ld Magistrate”.
Under Section 4 of the ordinance, any Muslim man who pronounces talaq-e-biddat or any such talaq which has the effect of instantaneous divorce will be punished with imprisonment for a term of up to three years. While under Section 7, the offence is made cognizable, compoundable and no bail shall be granted to the accused under the Act unless the magistrate is satisfied that grounds for bail are made out.
“Ordinance will open the new floodgates of severe, sour, highly vengeant battles in intra-family relations, nonetheless, one such case would impact the number of relatives of both sides turning foe in the event of jail term to the Muslim husband, which is not the scene today. In other words, even 1% such cases in the Muslim population would adversely impact about 20% population.
Increase in this percentage would keep the Muslim Community entangled in these issues, when in all other religions no such criminalisation is permitted due to divorcing. The impugned Ordinance will increase and intensify the infighting in the Muslim Couples while keeping other religion couples staying at bay and making the fun of it. With due respect, due to this selective criminalisation of divorce selectively in Muslim religion while keeping it as civil case in other religion is bound to create a huge rift nay division amongst the Muslim population, adversely impacting and thwarting their social, economic and overall development harmonious vis-à-vis. other community or in other words, rest of the nation,” the petition stated.
Thus, the petition sought an interim stay on Sections 4 and 7 of the said ordinance while the petition is pending.
“There is no criminalization/arrest attached to the pronouncement of divorce in any other religion, then what has prompted this ordinance which will have an adverse impact across India on Muslim husbands only. This is violative of Articles 14, 19, 21 and 25 of the Constitution, hence Sections 4 and 7 have to be struck down,” said advocate Tanvir Nizam who is appearing on behalf of the petitioners.
The matter is likely to come up for hearing on September 28.