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Synopsis

The Supreme Court of India on Wednesday directed the Centre to furnish details on the number of FIRs filed against Muslim men for uttering triple talaq under the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The bench, comprising Chief Justice of India (CJI) Khanna and Justice Sanjay Kumar was hearing a batch of petitions challenging the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalizes the practice of Triple Talaq.

In view of this, the Top Court accordingly directed the Centre to furnish the total number of FIRs registered under Sections 3 and 4 of the said Act and listed the matter for 17th of March.

During the hearing, the court inquired about the rationale behind the penal law when the practice of divorce by triple talaq had itself been declared void.

In response, Solicitor General Tushar Mehta, appearing for the Centre, defended the law and said, "This is the minimum required to be done to protect women. It was a deterrent. The effect of triple talaq was instantaneous and irrevocable. You say that from the next minute onwards, you are not my wife. You throw a human being out of your life and house. In no civilized society such practices are tolerated."

However, Senior Advocate MR Shamshad and Advocate Nizam Pasha, appearing for the petitioners, argued: "For a criminal offence, even in Delhi, an FIR is not registered for six months. But here, if someone simply says 'talaq' three times, he will be sent to jail immediately. That is the issue."

At the end of the proceedings, SG Tushar Mehta in a lighter vein quoted an eminent poet from Pakistan, Parveen Shakir, who was divorced. He said, "Talaq toh de rahe ho ghurur-o-suroor ke sath, meri jawani bhi lauta do mere Meher ke sath."

To this, CJI Sanjiv Khanna remarked, "I don't think most lawyers would argue that this is the right practice; they would probably argue about the criminalization."

Notably, in August 2017, a five-judge bench of the Supreme Court in the case of Shayara Bano v. Union of India declared the practice of triple talaq as unconstitutional.

Centre Defends The Act for criminalisation 

The Centre had defended the Muslim Women (Protection of Rights on Marriage) Act, 2019, before the Supreme Court, arguing that the court's previous decision to set aside triple talaq had failed to sufficiently curb the practice among certain Muslim communities, necessitating further state action to address the issue effectively.

In an affidavit filed on August 5, 2024, the Union government's Ministry of Law and Justice said that after the top court declared triple talaq unconstitutional and violative of fundamental rights, Parliament was authorized to criminalize the practice with a law.

The government argued that the practice of triple talaq lacked both legal and religious legitimacy, as it allowed the instantaneous dissolution of marriage and effectively institutionalized the abandonment of wives by their husbands.

"The practice did not simply result in a private injury but in a public wrong as it militated against the rights of women and the social institution of marriage itself," it said.

The government also asserted that there was no basis to the claim that marriages being under personal law are exempt from the application of the general criminal law. 

"Marriages are a social institution which the State has a special interest in protecting. It is beyond doubt that the State can protect the stability of marriages by resorting to criminal law. Enactments such as the Domestic Violence Act, 2005, the Dowry Prohibition Act, 1961, etc are all enacted under the same general principle as the present law i.e. preserving the sanctity of the institution of marriage," it said.

The government also maintained that defining offences and prescribing appropriate penalties is a core function of the State. 

"Whether or not a particular type of conduct ought to be criminalised, and what punishment is to be imposed for such conduct is to be determined by the legislature in light of the prevailing social circumstances. Whether a particular type of conduct warrants treatment as a civil wrong or a criminal offence is a determination which cannot be made by the courts," it said.

Furthermore, the Centre said that when in the Shayara Bano case, the apex court by a majority of 3:2 held the practice of triple talaq as manifestly arbitrary and neither Islamic nor legal, it cannot be argued that a law criminalising the practice is manifestly arbitrary.

"Shayara Bano case already recognised triple talaq as an aberrant practice. All that the impugned law does is provide for sanctions to renforce deterrence against following of the practice. This can by no means be called arbitrary and is in fact the very essence of criminal law," the government asserted.

It added, "If an act is found to be manifestly arbitrary and unconstitutional by this court and if such an act is declared to be an offence punishable under law, the court cannot interfere with the legislative act of making punishable such arbitrariness already declared under law to be violative of the provisions of the Constitution." 

The government stressed that it is also settled law that the petitioner cannot seek the enforcement of negative equality by contrasting the punishment provided 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 Tala-e-biddat was held unconstitutional and a need was felt to have a standalone legislation to address the same," it said.

Opposing a writ petition filed by Samastha Kerala Jamaiathul Ulema, the government said, 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.

The government argued that the petitioners' claim—asserting that triple talaq cannot be criminalized since it has no legal effect post-Shayara Bano case—misinterprets the principles of criminal law.

"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 said.

"If sanctions did not exist, the prohibition on criminal conduct itself would become a dead letter to be freely disregarded," the affidavit read.

Earlier also in April 2023, the Centre had defended before the Supreme Court its law to make triple talaq a punishable offence with maximum three years jail term, saying despite the Constitution bench decision to ban 'talaq-e-biddat' and assurance by the All India Muslim Personal Law Board, there had been reports of such divorces in the Muslim communities.

Case Title: SAMASTHA KERALA JAMIATHUL ULEMA V.  UNION OF INDIA