A religious organisation of the Sunni Muslim scholars and clerics in Kerala Samastha Kerala Jamiathul Ulema has filed a petition in the Supreme Court challenging the Constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019 [https://mk0barandbenchgqge2s.kinstacdn.com/wp-content/uploads/2019/08/Muslim-Women-Protection-of-Rights-on-Marriage-Act-2019.pdf] which criminalizes the Tripe Talaq.
The petitioner has contended that punishing Muslim man for pronouncing “Talaq Talaq Talaq” is violative of Article 14, 15 and 21 of the Constitution. The concept of Triple Talaq is based on Muslim’s religious identity.
Violations of Article 14
As per Section 3 of the above-mentioned Act, any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
And as per Section 4, any Muslim husband who pronounces triple talaq will be punished with the imprisonment of 3 years which shall also be liable to fine.
Moreover, after Shahyara Bano, the said utterance is without legal sanction or effect. The marriage survives, regardless of such utterance. Hence, the petitioner has questioned the logic and intent of why the mere utterance of meaningless words should attract a three-year sentence for the husband.
Violations of Article 15
Article 15 of the Indian Constitution prohibits description on the basis of many factors and one such factor is of religion.
If the “triple talaq” has no longer a legal effect than there is no point if these words are uttered only by a Muslim husband or by a husband of any other community. But Sections 3 and 4 has specifically mentioned that the triple talaq uttered by Muslim husband will be declared as void and illegal.
Violation of Article 21
Substantive due process is now recognized to be a part of a person’s fundamental right under Article 21. A law that is not just, fair or reasonable is no law under the Constitution.
There is no welfare approach in this Act as protection of wives can’t be achieved by providing imprisonment to their husbands.
The Act is such an endeavour and ought to be struck down for violating Article 21, the petitioner has contended.
A petition challenging the same law has also been filed in the Delhi High Court.