Jan 29 || TC - On Wednesday, the Supreme Court directed the Centre to provide data on the criminal cases filed under the 2019 Muslim Women (Protection of Rights on Marriage) Act, which makes the practice of pronouncing triple talaq by Muslim men a criminal offense.
A Bench led by Chief Justice of India, Sanjiv Khanna, was hearing multiple petitions from various Muslim organizations challenging the constitutionality of the 2019 law passed by Parliament.
The petitioners argued before the court that the practice of triple talaq no longer holds legal validity following the Shayara Bano case and, therefore, should not be criminalized.
In 2017, the Supreme Court ruled in the Shayara Bano Vs. Union of India case that ‘talaq-e-biddat’ (triple talaq) violated women's fundamental rights and the principle of equality under the Constitution. The court suggested that the practice should be made punishable.
The Chief Justice-led Bench asked Solicitor General Tushar Mehta, the Centre's second-highest law officer, to present data on the number of FIRs and charge sheets filed against Muslim men for using the instant triple talaq to divorce their wives.
The Supreme Court also acknowledged the petitioners' argument that triple talaq should not be criminalized now that the practice is banned and cannot result in a divorce through the utterance of talaq three times at once.
The Bench, which also included Justice Sanjay Kumar, scheduled the final hearing of the petitions for the week starting March 17.
In a separate affidavit filed with the Supreme Court, the Centre defended the constitutional validity of the 2019 Muslim Women (Protection of Rights on Marriage) Act.
The Centre’s affidavit argued that the Supreme Court’s ruling against talaq-e-biddat had not been sufficient in reducing the number of divorces resulting from the practice among certain Muslim communities. It highlighted that victims of triple talaq had no choice but to approach the police, who were unable to take action in the absence of punitive provisions in the law.
“Therefore, in order to prevent the aforesaid practice, it was felt that there was an urgent need for stringent provisions in the law which act as a deterrent to Muslim husbands divorcing their wives by adopting instantaneous and irrevocable talaq,” the affidavit read.
The Centre further stated that the practice of talaq-e-biddat not only legitimized the abandonment of wives by their husbands but also caused public harm, undermining women's rights and the institution of marriage.
The affidavit emphasized that Parliament had enacted the law to safeguard the rights of married Muslim women who were being divorced via triple talaq, thus ensuring the constitutional goals of gender justice and equality for married Muslim women.
The Centre argued that the Supreme Court has consistently held that it cannot challenge the legislative wisdom behind such laws. It emphasized that defining crimes and penalties is within the government's domain, and it is up to the legislature to determine what actions should be criminalized and what penalties should be applied based on societal needs.
The Centre pointed out that a similar petition challenging the 2018 Muslim Women (Protection of Rights on Marriage) Ordinance, which was aligned with the 2019 Act, was dismissed by the Delhi High Court in September 2018.
“It is submitted that where the Shayara Bano case itself has held the practice of triple talaq to be manifestly arbitrary, it cannot be argued that a law criminalising the practice is manifestly arbitrary,” the Centre argued, adding that the claim that marriages, being governed by personal law, are exempt from general criminal laws had no basis. The Centre stated, “marriages are a social institution in which the State has a special interest in protecting.