SC refuses to entertain pleas against ordinance making instant 'triple talaq' penal offence

The Muslim Women (Protection of Rights on Marriage) Ordinance was notified on September 19, hours after the Union Cabinet had cleared it.

Instant 'triple talaq', also known as 'talaq-e-biddat', is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing 'talaq' three times in one go.

Under the ordinance, instant 'triple talaq' has been declared as illegal and void and will attract a jail term of three years for the husband.

Seeking to allay the fears that the proposed law could be misused, the government has also included certain safeguards, such as adding a provision of bail for the accused before the trial.

The petitions challenging the constitutional validity of provisions of the ordinance came up for hearing on Friday before the bench comprising Chief Justice Ranjan Gogoi and Justices K M Joseph and Hemant Gupta.

The bench told the lawyers appearing for the petitioners that an ordinance has a life of six months. It also observed that the Winter Session of Parliament was coming up.

"We are not inclined to entertain it," the bench said, after which the petitioners withdrew their pleas.

One of the advocates appearing for the petitioners said that the ordinance was a "fraud" on the Constitution.

One petitioner, Kerala-based Muslim organisation Samastha Kerala Jamiyyathul Ulama, had claimed in its plea that the ordinance promulgated by the Centre was "arbitrary and discriminatory", violative of Articles of Constitution including Article 14 (equality before law) and should be struck down.

"The Ordinance has introduced penal legislation, specific to a class of persons based on religious identity. It is causative of grave public mischief, which, if unchecked, may lead to polarization and disharmony in society. Further, adjudication of the legality of the Ordinance by a plurality of High Courts under Article 226 would mean multiplicity of litigation over the same cause of action," the plea had said.

It had also said Article 123 of the Constitution enables promulgation of ordinances only in instances requiring "immediate action" and "absence of emergent reasons" negates any invocation of the provision in the given circumstances.

The petitioner had claimed that the ordinance would lead to "polarization and disharmony in society", as it applies to a specific class of people based on religious identity.

Besides the Kerala-based organisation, two other pleas were also filed in the apex court on the issue.

The proposed law would only be applicable on instant 'triple talaq' or 'talaq-e-biddat' and would give power to the victim to approach a magistrate seeking "subsistence allowance" for herself and minor children A woman can also seek the custody of her minor children from the magistrate who will take a final call on the issue.

In a landmark verdict, the apex court on August 22 last year had put the curtains down on a 1,400 year old practice of 'triple talaq' among Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law Shariat.