The All India Muslim Personal Law Board and Kamal Faruqui, member of Executive Committee of the Board have moved the Supreme Court challenging The Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises triple talaq, saying the same is unconstitutional and brings marriage on the brinks of breakdown.
Filed through Advocate M R Shamshad, the petition prays that the Act be declared ultra vires Articles 14, 15, 19, 20, 21, 25 and 26 of the Constitution of India.
"Talaq-E-Biddat, was the erstwhile, rare practice among Sunni Muslims of the Hanafi Sect, whereby the husband would divorce his wife by the utterance of the word 'Talaq' thrice, in one go. This Hon'ble Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 in terms of para 395 has set it aside, by a majority of 3:2, the practice of Talaq-E-Biddat popularly referred to as Triple Talaq. Thus, such act, even if uttered by the husband, became non-est and meaningless. At best, the pronouncement, can be categorised under one of the provisions of the Domestic Violence Act as the marriage would still subsist.
"In terms of Act No. 20 of 2019, a class of citizen, i.e. Hanafi Muslim men have been made the subject of hostile discrimination for the purposes of legislative classification and a meaningless action has been made into a strict liability offence, which is non-bailable and punishable by upto three years imprisonment and fine. Moreover, the Act is manifestly arbitrary as it, on the one hand declares pronouncement of Talaq-E-Biddat to be void but thereafter makes it a criminal offence and also decides the custody of minor children by default. Thus, Act No. 20 of 2019 is ultra vires Article 14".
In August, 2017, in ShayaraBano Vs. Union of India and Ors, a Constitution bench of apex court had declared the practice of Talaq-e-Biddat being ultra vires the Constitution of India.
On August 23, the SC had issued notice on three petitions which challenged the vires of the Act.
The petition challenges the Act on several grounds.
It lays challenge to Section 2 of the Act which makes Talaq e Biddat "or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by Muslim husband" an offence.
It says, the words "any other form of Talaq…" are "superfluous, vague and therefore that part of section 2 (c) is void being uncertain, vague and thus manifestly arbitrary.
Challenging Section 3 of the Act, the petitioners say, "Section 3 of the Impugned Act declares 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. This section refers to Talaq-e-Biddat as which is held unconstitutional in Shayara Bano Case by the Hon'ble Supreme Court. Section 3 is irrational and suffers from internal contradiction. Since Talaq e Biddat i.e. pronouncement of triple Talaq in one sitting has already been declared to be unconstitutional and its practice set aside, such utterance has no legal/civil consequence. Consequently, despite such utterances, marriage survives.
"Therefore, it was totally redundant and irrational to declare statutorily the practice of Talaq e Biddat as void. Secondly, section 3 of the Impugned Act also suffers from internal contradiction because if any act which is declared void has no existence in the eyes of law and it is redundant and contradictory to declare non-existent act illegal".
On Section 4 which provides that Muslim husband who pronounces Talaq referred to in section 2 (c) shall be punished for imprisonment of terms which may extend upto 3 years and shall be liable to fine, the petition says, "the Impugned Act brings the marriage on the brinks of break down between the couple instead of saving the same".
Custody of children
The petition further challenges "Section 6 which provides that notwithstanding anything, in the event of pronouncement of talaq, the wife shall be entitled to the custody of her minor children".
"…such a wide, all-encompassing provision, which leaves no scope whatsoever, for the custody of the children to be given to the husband or the grandparents or any other agnate or cognate relative, is arbitrary as it does not provide for any exceptional circumstances," it says.
The petition also submits that the Impugned Act has been given retrospective effect from September 19, 2018 when "it is settled law that criminal liability cannot be introduced with retrospective effect. The Impugned Act violates Article 20 (1) of the Constitution".
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