A PIL has been filed in the Madras High Court against the ordinance that makes the practice of instant 'triple talaq' a punishable offence, contending that it violated the Constitution and was discriminatory.
When the public interest litigation petition by Hussain Afroze, an advocate of the high court, came up for hearing, a bench comprising justices S Manikumar and P T Asha directed the counsel, who appeared for the Centre, to get instructions and posted it to October 22.
The petitioner challenged clauses 4-7 of the Muslim Women (Protection of Rights on Marriage) Ordinance, promulgated on September 19, and sought to declare the ordinance as ultra vires.
He also sought an interim injunction on the ordinance.
Already, the Kerala-based Muslim organisation Samastha Kerala Jamiyyathul Ulama has moved the Supreme Court challenging the ordinance.
Instant triple talaq, also known as talaq-e-biddat, is an instant divorce whereby a Muslim man can divorce his wife by pronouncing 'talaq' three times in one go.
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Under the ordinance, instant triple talaq has been declared illegal and punishable with a jail term of three years for the husband.
In the present PIL, the petitioner has submitted that under the Muslim Personal Law, a marriage was a civil contract and this position has been recognised under the Shariat Act 1937 and in various judicial pronouncements.
Referring to the apex court's judgement in the Shayara Bano case on triple talaq, he said the court in its majority judgment emphatically declared the practice was invalid and the marriage does not stand dissolved on its pronouncement. The judgement is the law of the land as its stands today.
The pronouncement of triple talaq is otiose, he said, adding there was no legal justification for imposing a punishment upon an utterance which has no legal validity and does not inflict any injury -- legal or otherwise.
The petitioner said the government argued that the ordinance was being brought since the practice of triple talaq continued despite the Supreme Court order holding it unconstitutional and invalid.
Clause 3 of the ordinance invalidates triple talaq whereas Clause 4 stipulated penal consequences of up to three years imprisonment.
For an act to become a crime, there must be an injury caused to an individual or to the society at large, he said, adding since triple talaq does not dissolve a marriage, the imposition of punishment under Clause 3 of the ordinance "smacks of mala fide and arbitrariness."
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