The Centre has informed the Madras High Court that it was forced to promulgate an ordinance making Talaq-e-biddat (the practice of Muslim men divorcing their wives by pronouncing the word ‘talaq’ thrice) a criminal offence because the practice continued unabated across the country despite the Supreme Court holding it as unconstitutional.

In a counter affidavit filed before a Division Bench of Justices S. Manikumar and Subramonium Prasad, the Union Law Ministry stated that the government in its wisdom had thought it fit to promulgate the ordinance also because the police officers were helpless and could not initiate any punitive action whenever victims of Talaq-e-biddat lodged complaints.

Additional Solicitor General G. Rajagopalan submitted the counter affidavit in reply to a public interest litigation petition filed by advocate S. Hussain Afroze who had challenged the constitutional validity of the ordinance.

The counter recalled that the Supreme Court had declared triple Talaq unconstitutional in Shayara Bano’s case in August 2017.

During the course of the hearing of the case, the All India Muslim Personal Law Board too had assured the court that it would prescribe guidelines to be followed in matters of divorce and urge Muslims to avoid Talaq-e-biddat. Despite such an undertaking and court ruling against the practice, the “menace” continued to be reported from various parts of the country.

“It was also reported in various news channels and dailies that even educated persons are resorting to divorce their wives by adopting instantaneous and irrevocable Talaq... In the absence of any punitive provisions in the extant laws, the police were helpless and no action could be taken against the errant husbands,” the counter read.

Inadequate relief

Though the victimscould seek relief under the Protection of Women from Domestic Violence Act of 2005, “the reliefs under the said Act are ineffective against Triple Talaq... Therefore, it is considered necessary to have a standalone legislation and hence there is no unconstitutionality as averred by the petitioner,” it added.

It was also brought to the notice of the court that the ordinance was promulgated even as the Muslim Women (Protection of Rights on Marriage) Bill of 2017 was passed by the Lok Sabha on December 28, 2017, and was pending in the Rajya Sabha. The Ministry also said that few other High Courts in the country had already dismissed cases challenging the ordinance.

The ASG told the court that the present writ petitioner would have to amend his prayer since he had filed the case last year challenging the 2018 ordinance, which the Centre replaced with a fresh ordinance on the same subject on January 12, 2019.