Govt Defends 2019 Law Criminalising Triple Talaq, Tells SC Practice Is 'Fatal For Social Institution Of Marriage'

The government has defended its 2019 law criminalising triple talaq, arguing that it is essential for gender justice and the protection of Muslim women's rights. The law was enacted to deter the practice.

The Union government has filed an affidavit in the Supreme Court, strongly defending its 2019 legislation that criminalises the practice of instant triple talaq among Muslims. The government asserts that the law is essential for ensuring the constitutional goals of gender justice and equality for married Muslim women, thereby upholding their fundamental rights against discrimination and ensuring their empowerment.

The affidavit, filed by the Union Ministry of Law and Justice, argues that despite the Supreme Court's 2017 verdict in the Shayara Bano case, which set aside the practice of triple talaq, the ruling did not suffice as a deterrent. "The victims of talaq-e-biddat (triple talaq) have no option but to approach the police for redressal of their grievances, and the police were helpless as no action could be taken against their husbands in the absence of punitive provisions in the law," the affidavit states, as quoted by news agency IANS.

The Centre contends that the practice of talaq-e-biddat not only results in the abandonment of wives by their husbands but also constitutes a public wrong that undermines the social institution of marriage and violates women's rights. The 2019 Act, according to the affidavit, was enacted by Parliament to protect the rights of married Muslim women and to deter Muslim husbands from adopting this instantaneous and irrevocable form of divorce.

 The practice of triple talaq "makes Muslim women's condition very pathetic", the government argued in its affidavit, NDTV reported.

"The Parliament in its wisdom has enacted the impugned Act to protect the rights of married Muslim women who are being divorced by triple talaq and the law in question helps in ensuring the larger constitutional goals of gender justice and gender equality of married Muslim women," the affidavit stated, as per IANS.

‘No Basis To Claim That Marriages Are Exempted From Application Of General Criminal Law’: Union Govt

According to IANS, the government further emphasises that the role of the judiciary is not to question the wisdom of legislative measures but to respect the legislature's authority to define offences and prescribe appropriate penalties. The affidavit references a similar petition challenging the validity of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, which was dismissed by the Delhi High Court in September 2018.

“It is the function of the legislature alone to determine what is and what is not good and proper for the people of the land and they must be given widest latitude to exercise their functions within the limit of their powers else all progress is barred. Defining offences and prescribing appropriate penalties is a core function of the State. Whether or not a particular type of conduct ought to be criminalised, and what punishment is to be imposed for such conduct is to be determined by the legislature in light of the prevailing social circumstances,” the affidavit stated, as quoted by IANS.

Additionally, the Centre argues that since the Shayara Bano case declared triple talaq to be "manifestly arbitrary," the criminalisation of the practice cannot be deemed arbitrary. The plea before the Supreme Court, which challenges the constitutional validity of the 2019 Act, contends that the practice of triple talaq cannot be criminalised since it has no legal effect following the Shayara Bano judgment. However, the government maintains that the practice is "fatal for the social institution of marriage" and exacerbates the plight of Muslim women, justifying the need for stringent legal provisions.

“It is submitted that where the Shayara Bano case itself has held the practice of triple talaq to be manifestly arbitrary, it cannot be argued that a law criminalising the practice is manifestly arbitrary,” contended the Union government before the apex court while emphasising that there is no basis to the claim that marriages being under personal law, are exempted from the application of the general criminal law and “marriages are a social institution in which the State has a special interest in protecting”, IANS reported.