NEW DELHI: Terming the practice of instant divorce through triple talaq as indefensible after a five-judge bench in 2017 declared it unconstitutional, Supreme Court on Wednesday said it would examine the validity of the post-judgment legislation providing for up to three-year jail term for Muslim men persisting with the practice of abruptly ending their marriages by uttering the dreaded T-word thrice.
A bench of Chief Justice Sanjiv Khanna and Justice Sanjay Kumar said, “If the practice of triple talaq is banned, no Muslim man can divorce his wife through this process. So, even if the marriage survives, the man would be liable for a jail term under Muslim Women (Protection of Rights on Marriage) Act, 2019, merely for uttering triple talaq.”
To know the ground situation, the bench asked the Centre to furnish data on registration of FIRs against Muslim men across India for attempting to divorce their wives through triple talaq despite it being declared unconstitutional by SC in 2017 and criminalised by law in 2019.
Solicitor general Tushar Mehta said “the statistics would give the real picture of the situation in rural areas” and justified the need to criminalise the practice, adding that SC declaring talaq-e-bidat, or triple talaq, as unconstitutional did not deter Muslim men from continuing with the practice. He said unlike most laws enacted to protect women from abuse, harassment and discrimination that provide for a minimum punishment of three years, the 2019 law has set the maximum punishment at three years, while leaving it to the discretion of the court to decide the quantum of imprisonment and fine.
Many Muslim organisations have questioned the validity of the 2019 legislation on the ground that once a practice was banned, there was no question of any Muslim man obtaining a legally valid divorce through this method. Senior advocate M R Shamshad and counsel Nizamuddin Pasha said mere utterance of triple talaq could not be criminalised and made liable to prison term. This threat of imprisonment for similar utterances by men professing other religions was not there, hence the 2019 law was discriminatory, they argued.
CJI Khanna said for Hindus, Sikhs, Jains, Buddhists and Christians, marriage laws are codified and provide a procedure for divorce with no provision for instant divorce. “Let the Centre file the requisite data. We will examine it,” the bench said and posted the matter for the last week of March.
Mehta said govt, by enacting the law, intended to stop exploitation of Muslim women who had the threat of triple talaq hanging over their heads. Referring to the 2017 five-judge bench judgment on the lead petition by 35-year-old Shayara Bano, who had challenged the regressive practice that ended her 15-year marriage in an instant, SG quoted a famous couplet, “Talaq toh dete ho itab-o-kahar ke saath, mera shabab bhi lauta do meri mehr ke saath (you are giving me talaq with anger, but as you return my mehr money, also return my youth).”
The Centre in its affidavit had countered the petitioners’ argument that marriage being governed by personal law must be exempted from the ambit of criminal law. The Centre’s affidavit said, “Marriages are a social institution which the state has a special interest in protecting. It is beyond doubt that the state can protect the stability of marriages by resorting to the device of criminal law.” It cited enactment of Protection of Women from Domestic Violence Act, 2005, and Dowry Prohibition Act, 1961.
Shamshad argued that police took months to register FIRs under DV Act despite allegations of physical assault by husbands, yet they registered FIRs instantaneously under the 2019 law and sent Muslim men to jail.