The newly passed law criminalizing triple talaq was challenged in the Supreme Court as well as the Delhi High Court, claiming that the law was unconstitutional and discriminatory in nature.
Triple Talaq or Talaq-e-biddat is a form of divorce under the Muslim personal laws, by which a Muslim man can instantly and irrevocably divorce his wife by uttering the word ‘talaq’ thrice. The practice had been a matter of great controversy, drawing much fire for being oppressive towards Muslim women.
In the landmark Shayara Bano v. Union of India & Others judgement in 2017, the Supreme Court had deemed the practice unconstitutional.
Following the judgement, The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in the Parliament, which made all declaration of talaq, including written and electronic forms, to be illegal and void. It also declared the practice to be a cognizable and non-bailable offence, punishable by imprisonment up to three years. The Bill received Presidential assent on 1 August 2019.
A day after the law was passed, two petitions challenging the act were filed, claiming that the law was not only ineffective in protecting the interests of Muslim women, but also violated fundamental rights enshrined in the constitution.
The first petition was filed in the Supreme Court, by one of the largest Muslim religious organizations of Kerala, by the name of Samastha Kerala Jamiathul Ulema, comprising Sunni Muslim scholars and clerics. It alleged that the law violated Articles 14, 15 and 21 of the constitution. It was argued that the law was discriminatory towards a class of men belonging to a particular religion. Since the Supreme Court had already pronounced talaq to be null and void, further enforcing a penal legislation was redundant, and only meant to target and punish Muslim men. Furthermore, the law does not punish members of other religions for deviating from the prescribed procedures of divorce outlined in their respective statutes.
Hence the legislation was arbitrary and unreasonable, and violated the right to equality enshrined in the Constitution
The second petition was filed in the Delhi High Court by Advocate Shahid Ali. It was argued that the law would be detrimental to the marriage and the interests of the woman, as making the offence non bailable and punishable with imprisonment of three years would decimate the chances of reconciliation and compromise between the husband and the wife. In addition, the law was also argued to have great potential for misuse, as there was no established mechanism to ascertain the truth in these allegations.
The petition filed by the advocate would be called for hearing the next week.
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