A public interest litigation has been filed in the Supreme Court challenging the Constitutional validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019 which criminalises triple talaq.
The public suit has been filed by the Samastha Kerala Jamiathul Ulema, a religious organisation of Sunni Muslim scholars and clerics in Kerala, which has requested the apex court to strike down the new act as it violate Articles 14, 15 and 21 of the Constitution. The petitioner has also sought an interim stay on the recent law that criminalises triple talaq.
The petitioner said that the Act applies across the country and thus has national ramifications. "The Act 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 polarisation and disharmony in society," the plea said.
"The impugned Ordinance makes the offence of uttering 'Triple Talaq' non-bailable and further states that the magistrate can grant bail only after hearing the wife. This provision has far reaching consequences in granting of bail," the petitioner said.
"There is no provision that victim shall be heard before granting bail to the accused. Further, the husband shall only be given bail on the conditions imposed by the wife. Generally bail is granted on the satisfaction of a judge that the accused shall not influence witnesses, shall not disappear and shall not temper with evidence."
"Attaching conditions to the bail like payment of money etc. at FIR stage takes away the presumption of innocence and is contrary to the settled principles of law," the petitioner said in the plea.
It said that the impugned act is manifestly arbitrary and discriminatory, manifestly unfair and unreasonable as "It creates an offence and causes a deprivation of liberty without justification."
"There is no benevolence or welfare apparent in this Act. Abolition of Triple Talaq was not a surviving cause for legislative action. Protection of wives cannot be achieved by incarceration of husbands," said the plea.
It further added that a truly welfare-oriented legislation would promote amicable resolution of matrimonial disputes, regardless of community and would not purport to criminalise marital discord and moreover, particularise the criminalisation only to one community.
The petitioner requested the court to declare that the Muslim Women (Protection of Rights on Marriage) Act, 2019, notified on July 31, is violative of Articles 14, 15, 21 and 123 of the Constitution of India and hence unconstitutional and unenforceable.
The petitioner said that under Section 4 of the impugned Ordinance read with Section 7(a) a Muslim man can be jailed for a period up to three years at the instance of wife or a blood or marital relative of the wife. But the Ordinance has not defined blood and marital relationship.
It said that this provision has the potential to destroy a marital relationship in case any of the relatives of the wife makes a false complaint against the husband. This provision is highly detrimental not only to the wife but also a marital relationship.
A similar petition has also been filed in the Delhi High Court.