The Ministry of Law and Justice has filed a counter affidavit in a writ petition challenging the constitutionality of the "Triple Talaq Act" i.e. the Muslim Women (Protection of Rights on Marriage) Act, 2019 stating that it is violative of Articles 14, 15, 21 and 123 of the Constitution of India.

The statute was enacted after the Constitution Bench of the Apex Court in the matter of Shayara Bano Vs. Union of India and Others (2017) set aside the practice of "talaq-e-biddat" as it violates the fundamental rights and the rights of equality guaranteed to a woman under the Constitution.

The matter is listed for a further date before the bench of Justice Sanjiv Khanna, Justice Sanjay Kumar and Justice R Mahadevan.

The Affidavit states, "The aforesaid Bill proposed to declare the practice of triple talaq as void and illegal and made it an offence punishable with imprisonment up to three years and fine, and triable by a Judicial Magistrate of the First Class. It was also proposed in that Bill to provide subsistence allowance to married Muslim women and dependent children and also for the custody of minor children. The Bill further provided to make the offence cognizable and non-bailable. However, apprehensions were raised in and outside Parliament regarding the provisions of the pending Bill which enabled any person to give information to an officer in charge of a police station to take cognizance of the offence and making the offence non-bailable."

After the decision of the Supreme Court, the Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced in, and passed by, the Lok Sabha on December 28, 2017, and was pending in Rajya Sabha. The Affidavit says that as the Bil was pending consideration by the Rajya Sabha and the practice of divorce by triple talaq (i.e. talaq-e-biddat) was continuing, there was an urgent need to take immediate action to prevent such practice by making stringent provisions in the law. Since both Houses of Parliament were not in session and circumstances existed which rendered it necessary for the President to take immediate action in the matter, the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was promulgated. Subsequently, the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 and Second Ordinance, 2019 were promulgated.

Thereafter, the Sixteenth Lok Sabha was dissolved and the Muslim Women (Protection of Rights on Marriage) Bill, 2017 and the Muslim Women (Protection of Rights on Marriage) Bill, 2018 pending in Rajya Sabha lapsed. Accordingly, to replace the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019, the Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Parliament was enacted as the Muslim Women (Protection of Rights on Marriage) Act, 2019 (20 of 2019) on July 31, 2019.

"It is respectfully submitted that this Hon'ble Court has consistently held that the Court cannot go into the wisdom of the measure, but only its constitutionality of legislation. Likewise, the Court is only concerned to interpret the law and if it is valid, to apply the law as it finds it and not to enter upon a discussion as to what the law should be. It is further acknowledged and upheld by this Hon'ble Court repeatedly that it is the function of the Legislature alone to determine what is and what is not good and proper for the people of the land and they must be given widest latitude to exercise their functions within the limit of their powers else all progress is barred", the Affidavit states.

The Affidavit further added that the Act is a piece of legislation made by the Parliament to implement the decision laid down by the Court, therefore, the Writ petition deserves to be dismissed in limine.

The Affidavit states, "It is submitted that the petitioners attempt to argue that since the practice of triple talaq has no legal effect after Shayara Bano case, it cannot be criminalised. The argument appears to be that since the criminal conduct engaged in had no advantageous legal effect for the perpetrator, it cannot be a crime. This argument turns the principle of penal laws on their head. In plain terms, Petitioners are essentially attempting to argue that the Act ought not to be criminalised because the attempted illegal conduct was not successful in its object. In doing so, petitioners have overlooked the very basis of criminal law. If sanctions did not exist, the prohibition on criminal conduct itself would become a dead letter to be freely disregarded. It is further submitted that if the petitioners agree that the pronouncement of talaq-e-biddat would have no legal effect and consequence and in fact, is manifestly arbitrary after the judgment in Shayara Bano, the petitioners or any other law-abiding citizen of the country ought not to have any grievance with the criminalisation of the said manifestly arbitrary action, as declared by this Hon'ble Court."

The Affidavit also says, "Moreover, it is also settled law that the petitioner cannot seek the enforcement of negative equality by contrasting the punishment provided for under one law for wrongful action with others. As held in a plethora of cases, Article 14 cannot be used as a tool to enforce negative equality. The practice of Talaq- e-biddat was held unconstitutional and a need was felt to have a standalone legislation to address the same. Therefore, the contentions of the petitioners that the present case ought to be equated with other forms of non-compliance and statutory violations in the process of divorce must be set aside at the outset, as this seeks the perpetuation of illegality which is not covered under Article 14."

Cause Title: Samastha Kerala Jamiathul Ulema v. Union of India (Writ Petition (C) No. 994 of 2019)

Click to read/download the Affidavit

Muslim Women (Protection of Rights on Marriage) Act 2019Triple Talaq

Aastha Kaushik