The Madras High Court on Friday directed the Centre to reply by October 22 to a writ petition questioning the necessity for making pronouncement of triple talaq a criminal offence though such pronouncement does not have any legal sanctity and was basically a civil issue that causes no legal injury to Muslim women.
The petitioner, S. Hussain Afroze, 39, an advocate by profession, pointed out that the very definition of ‘Talaq’ in the Muslim Women (Protection of Right of Marriage) Ordinance of 2018 was wrong because such form of talaq had already been rendered otiose by a catena of decisions rendered by the the Supreme Court.
Stating that the ordinance, promulgated on September 19, requires payment of subsistence allowance to a “divorced” wife, the litigant wondered where was the question of paying subsistence allowance when the law had been settled by the Supreme Court way back in 2002 that triple talaq was not a valid form of divorce.
According to the petitioner, any violation of the right of a woman or deprivation of financial support to her during subsistence of marriage would come within the purview of the Protection of Women from Domestic Violence Act of 2005 and Muslim women could always invoke this legislation to ascertain their rights.
Arguing the case before a Division Bench of Justices S. Manikumar and P.T. Asha, petitioner’s counsel Zaffarullah Khan recalled that the Supreme Court in Shamim Ara versus State of Uttar Pradesh, delivered on October 1, 2002, had held that triple talaq does not confirm to the Quranic concepts of divorce and hence not valid in law.
The view was reaffirmed in August 2017 in Shayara Bano versus Union of India. “This categorical decision of the Supreme Court in the matter of triple talaq lays down the law of the land as it stands today but the government has now promulgated an ordinance introducing penal consequences for a contractual dispute,” he said.
It claimed that the Centre ought not to have promulgated the ordinance when a Bill was already passed by the Lok Sabha and was pending before the Rajya Sabha. Ordinances could be promulgated only when the Houses were not in session and when the President was satisfied of a dire necessity for a new law.
In so far as the present subject was concerned, there were no foreboding developments that required an immediate intervention by a process of promulgation of an ordinance. Therefore, the present exercise was in excess of powers conferred on the government to promulgate ordinances under Art 123(1) of the Constitution, the counsel argued.
He also brought it to the notice of the court that the entire concept of Muslim marriage stands altered under the present ordinance. “A disagreement under a marriage contract between those belonging to a particular religious denomination had been characterised as a crime though other religious denominations are not exposed to similar penal consequences,” he claimed.
It was contended that such a law was per se discriminatory and in violation of Articles 14 (State shall not deny to any person equality before law or the equal protection of the laws) and 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution.