NEW DELHI: A plea challenging the constitutional validity of the provisions of a recent ordinance that makes the practice of instant 'triple talaq' a punishable offence, was filed in the Supreme Court Tuesday.
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 (rpt ordinance), instant triple talaq has been declared illegal and void and will attract a jail term of three years for the husband.
Seeking to allay fears that the proposed law could be misused, the government has included certain safeguards, such as adding a provision of bail for the accused before trial.
Kerala-based Muslim organisation Samastha Kerala Jamiyyathul Ulama in its plea filed in the top court said the Ordinance promulgated by the Centre was "arbitrary and discriminatory" and violative of Articles 14, 15 and 21 of the Constitution 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, filed through advocate Zulfiker Ali P S, said.
The petition said that Article 123 enables the promulgation of ordinances only in instances requiring "immediate action" and the "absence of emergent reasons" negates any invocation of the provision in the given circumstances.
"Despite the Central Government having had ample opportunity to abolish the practice before the judgment in Shayara Bano, if not for 1400 years, at least the 67 years of the existence of the Constitution preceding Shayara Bano, the government chose to await the adjudication in Shayara Bano case.
"Once there was declaration made by this Court under Article 141 in Shayara Bano, there was no surviving action, let alone "immediate action" warranted to reiteratively abolish the practice and penalise Triple Talaq by way of an Ordinance under Article 123. Hence the promulgation of impugned Ordinance is against the spirit of Article 123 and a fraud on the Constitution," the plea alleged.
The petition 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.
"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 polarisation and disharmony in society," the plea said.
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.