New Delhi:The Centre defended its 2019 law criminalising instant triple talaq in the Supreme Court, arguing that the practice is harmful to the institution of marriage and violates the rights of women.
The government stated that triple talaq, or talaq-e-biddat, legitimises the abandonment of wives by their husbands, constituting a public wrong that undermines the social institution of marriage. In its affidavit, filed in response to petitions challenging the law, the Centre noted that despite the Supreme Court’s 2017 ruling declaring instant triple talaq unconstitutional, the practice has persisted, necessitating legislative action. The government emphasised that the law was enacted to protect the rights of married Muslim women and to ensure gender justice and equality.
The affidavit was submitted in response to a plea by the Samastha Kerala Jamiathul Ulema, which, along with the Jamiat Ulama-I-Hind, has sought a declaration that the law is unconstitutional. The petitioners argued that criminalising divorce in one religion while treating marriage and divorce as civil matters in others leads to discrimination, violating constitutional rights.
The government countered that the law is necessary to enforce the Supreme Court’s 2017 decision and address the continued occurrence of triple talaq. It also addressed concerns about the law’s provisions, stating that the offence is non-bailable and compoundable at the instance of the married Muslim woman, with the permission of the Magistrate.
The Centre further argued that the determination of what constitutes a criminal offence is within the purview of the legislature, not the judiciary. It maintained that the law is consistent with the Supreme Court’s ruling in the Shayara Bano case, which deemed triple talaq arbitrary and non-Islamic. The law, according to the government, simply enforces deterrence against this practice, aligning with the principles of criminal law.
The government also rejected the claim that marriages under personal law are exempt from general criminal law, emphasising that the state has a vested interest in protecting the stability of marriages through criminal legislation, as seen in laws like the Domestic Violence Act and the Dowry Prohibition Act.
The Centre concluded by asserting that if triple talaq is recognised as having no legal effect, there should be no objection to its criminalisation, as it aligns with the SC’s previous ruling.
