Law against triple talaq aimed at ensuring gender justice for Muslim women, Centre tells SC

The law criminalising triple talaq is aimed at ensuring gender justice and gender equality for married Muslim women, the Union government argued before the Supreme Court on Monday, according to PTI.

The Centre made the statement in response to a petition by the Samastha Kerala Jamiathul Ulema, which urged the court to declare the Muslim Women Protection of Rights on Marriage Act, 2019 as unconstitutional.

The law criminalises instant triple talaq, and provides for imprisonment of up to three years for any man who seeks to divorce his wife in this manner. In this practice, a Muslim man could instantly divorce his wife by pronouncing “talaq” three times.

The Muslim Women Protection of Rights on Marriage Act was notified on July 31, 2019 and came into force with retrospective effect on September 19, 2018. The law was implemented over a year after instant triple talaq, or Talaq-e-Biddah, was declared unconstitutional by the Supreme Court on August 22, 2017.

The Union government on Monday told the Supreme Court that the judgement from 2017 declaring the practice as unconstitutional did not work as a sufficient deterrent, The Indian Express reported.

“Therefore, it was felt that there is a need for State action to give effect to the order of this Hon’ble Court and to redress the grievances of victims of illegal divorce,” the government said.

The Centre contended that since the Supreme Court itself had declared instant triple talaq illegal, it should not interfere with a law that makes “such a manifestly arbitrary act” punishable.

The government also told the court that defining offences and laying down punishments for them is a core function of the State, and is to be decided by the legislature. “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 contended.

The Centre also sought to refute the petitioner’s argument that since instant triple talaq has no legal effect after the Supreme Court judgement, it should not be criminalised.

“This argument turns the principle of penal laws on its head,” The Indian Express quoted the Union government’s affidavit as saying. “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.”

The Centre further said there was no basis to the argument that as marriage falls under personal law, it should be exempt from the application of general criminal law, according to The Indian Express.

“Marriages are a social institution which the State has a special interest in protecting,” the government told the court. “…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.”

Also read:

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