New Delhi: The Central government has filed an affidavit before the Supreme Court, challenging the constitutionality of the practice of ‘triple talaq’ (talaq-e-biddat) and defending the law that was enacted to protect the rights of married Muslim women. The government argued that despite the Supreme Court’s 2017 ruling declaring triple talaq unconstitutional, the practice persists in various parts of the country, necessitating stronger legal measures.
Background
Triple talaq is a practice under Islamic law where a Muslim man can divorce his wife instantly by pronouncing “talaq” three times. This practice has been widely criticized for its gender discrimination and its devastating impact on the lives of Muslim women, often leaving them destitute and without any recourse.
In 2017, the Supreme Court, in the landmark Shayara Bano case, ruled that triple talaq was “unconstitutional,” “manifestly arbitrary,” and violative of the fundamental rights to equality and non-discrimination under Article 14 of the Constitution. Following this judgment, the government introduced The Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalizes the practice and prescribes a jail term of up to three years for those found guilty of pronouncing triple talaq.
Centre’s Argument
The Central government’s affidavit highlights that the Supreme Court’s 2017 ruling alone has not been an effective deterrent. The government noted that despite the ruling and assurances from the All India Muslim Personal Law Board, reports of divorces through triple talaq continue to surface from different parts of the country.
The affidavit stated, “It was felt that there is a need for state action to give effect to the Supreme Court’s order and to redress the grievances of victims of illegal divorce. The law was brought in to protect the rights of married Muslim women who are being divorced by way of triple talaq. It was felt that there was an urgent need for stringent provisions in the law which act as a deterrent to Muslim husbands divorcing their wives by adopting instantaneous and irrevocable talaq.”
The government described triple talaq as a practice that is “fatal for the social institution of marriage” and argued that it leaves Muslim women in a “very pathetic” condition, often with no legal recourse or financial support.
Legal Challenge and Counterarguments
The Supreme Court is currently hearing a batch of Public Interest Litigations (PILs) challenging the Muslim Women (Protection of Rights on Marriage) Act, 2019. These PILs, filed by various organizations including Maulana Amir Rashadi Madani, the Samastha Kerala Jamiathul Ulema, and the Jamiat Ulama-i-Hind, argue that the Act is unconstitutional. The petitioners claim that the law criminalizes a practice that had already been declared void and argue that it fails to fulfill its stated objective of protecting women.
The petitioners contend that the law’s focus on criminalizing triple talaq, without provisions for maintenance and protection for the divorced women, undermines its effectiveness. They question the utility of imprisoning the husband, asking, “What happens to the woman if the husband goes to jail?”
Government’s Defense
In response to these challenges, the government has defended the Act as a necessary deterrent. The Centre pointed out that despite the Supreme Court’s ruling, hundreds of cases of triple talaq have been reported, indicating the persistence of the practice and the need for legal enforcement.
Former Law Minister Ravi Shankar Prasad, who played a key role in the enactment of the law, questioned the opposition to the three-year jail term prescribed by the Act. He argued that when Hindu and Muslim men are jailed under laws like the Dowry Prohibition Act or the Domestic Violence Act, there is no objection. “What is the objection in penalizing the practice [of triple talaq]?” he asked, reinforcing the government’s position that the law is necessary to protect the rights and dignity of Muslim women.
The Supreme Court’s decision on this matter will be crucial in determining the future of triple talaq in India and the legal protections available to Muslim women. The government’s stance reflects its commitment to upholding gender justice and ensuring that the constitutional rights of all citizens, including married Muslim women, are protected. However, the debate also highlights the complex interplay between personal laws and the need for legal reforms to address gender inequality in India.