New Delhi: Samastha Kerala Jamila-thul Ulema has challenged in the Supreme Court the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Ord-inance, 2018, which abolishes triple talaq among Muslims and makes it a punishable offence.
The organisation submitted that this ordinance, notified on September 19, is violative of Articles 14, 15 and 21 of the Constitution and, accordingly, requires to be struck down. The ordinance is also unconstitutional for failing to satisfy the mandatory requirements of Article 123 of the Constitution, viz the ordinance-making power, it said.
It pointed out that the ordinance applies across the country and has thus had national ramifications. The ordinance has introduced penal legislation, specific to a class of persons based on religious identity.
It said once there was a declaration made by this court that talaq was illegal, there was no surviving action, let alone “immediate action” warranted to reiteratively abolish the practice.and penalise triple talaq by way of an ordinance under Article 123.
The fact that the matter is pending before Rajya Sabha is a reason to await the outcome of the matter, it said. not a basis to accelerate its coming into force by an emergency ordinance, and the intent behind the ordinance is not abolition of triple talaq but punishment of Muslim husbands, it said. It stated that Section 4 of the ordinance imposes a maximum sentence of three years’ imprisonment when a Muslim husband pronounces triple talaq. The offence is cognisable and non-bailable as per Section 7.The petitioner said the creation of an offence might be the prerogative of the legislature. The government is duty bound to act reasonably and sensibly, not merely in administrative matters but in sovereign matters.
To the petitioner’s knowledge, there is no informed assessment or study that forms the basis for the Central government to have created this offence. That some isolated instances of the practice have occurred despite the judgment of this court does not imply that a penal provision is required to be immediately enacted to prevent the practice, the petitioner said.
It said if the motive was to protect a Muslim wife in an unhappy marriage, no reasonable person could 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 impugned ordinance is patently unconstitutional and has immediate propensity to deprive Muslim men and women of their Fundamental Rights enshrined under Articles 14, 15 and 21 of the Constitution. Hence the operation of the impugned ordinance may be kept in abeyance till this court finally decides its legality, the petitioner claimed.
