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Supreme Court: The bench of NV Ramana and Ajay Rastogi, JJ has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years. It issued notice to the Centre on a batch of petitions seeking to declare The Muslim Women (Protection of Rights on Marriage) Act 2019 as “unconstitutional” on grounds that it allegedly violates the provisions of the Constitution.

Senior advocate Salman Khurshid said there were many dimensions, including making the practice a punishable offence and jail term of up to three years, which need to be examined by the top court. He said the petitioners were concerned about making the practice of triple talaq among Muslims an offence as the apex court had already declared it to be null and void. Referring to a five-judge Constitution bench verdict which had declared the practice of triple talaq among Muslims as null and void,

“If there is no such thing as triple talaq then what are they making an offence,”

To this the bench asked, suppose if a religious practice is declared as null and void and it is declared as an offence like dowry and child marriage, but if it still goes on then what is the remedy. Responding to the query, Khurshid said several aspects have to be examined and in the triple talaq matter the Constitution bench had already said the practice is void. He said it has to be examined whether the religious practice denies the rights to the woman.

The bench, while agreeing to examine the validity of the 2019 Act, observed that petitioners have also raised the issue of punishment of up to three years and grant of bail to the husband only after the woman is heard by the court.

In the plea filed through advocate Ejaz Maqbool, Jamiat Ulama-I-Hind has claimed that since the pronouncement of talaq by a Muslim husband upon his wife had already been declared “void and illegal”, there was no requirement to enact the law.

“However, the impugned Act criminalises the act of pronouncement of talaq by a Muslim husband and makes it a cognizable offence, without appreciating that such pronouncement had already been declared unconstitutional and amounted to nullity in the eyes of law,”

Referring to the provision of the Act which stipulates punishment of up to three years jail along with fine, the plea said it is an “ill-conceived provision which imposes excessive and disproportionate punishment.”

It claimed that “criminalising a mode of divorce in one particular religion while keeping the subject of marriage and divorce in other religions only within the purview of civil law, also leads to discrimination, which is not in conformity with the mandate of Article 15”.

Article 15 of the Constitution deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(Source: PTI)


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Case BriefsHigh Courts

Madras High Court: While examining the validity of certificates issued by the Kazis in the country in general and in Tamil Nadu in particular in respect of Talaq, the Division Bench of Sanjay Kishan Kaul, C.J., and M.M. Sundresh, J., held that for purposes of the courts and legal proceedings, the certificate in respect of Talaq issued by Chief Kazi is only an opinion and has no legal sanctity in view Section 4 of the Kazis Act, 1880 according to which the office of Kazi does not confer on the person any judicial or administrative power.

The Court further allowed the Muslim Personal Law Board to take some time to clarify the format in which these certificates are to be issued and asked Board to submit before it a new format which may remove the ambiguity before ant legal forum and which would be made open to stakeholders for suggestions. In the meantime no Talaq certificate by Muslim Personal Law Board can be issued as an opinion of Chief Kazi.

The instant writ petition was  supported by the Women Lawyers Association. It was prayed before the Court to forbear the Kazis from issuing Talaq certificates and other documents certifying or approving Talaq. It was also contended that the certificates so issued are causing immense confusion in the matrimonial proceedings and also in the understanding by the spouses as to the effect of such a certificate being issued by the Chief Kazi. [Bader Sayeed v. Union Of India, 2017 SCC OnLine Mad 74, decided on 10/01/2017]