Case BriefsSupreme Court

Supreme Court:

“The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services.”

Granting relief to women candidates who could not appear for the physical test during the selection process for Bihar Police held in 2018 because of their pregnancy, the Court has directed the Bihar Police Subordinate Service Commission to conduct a fresh test for such applicants. The bench of Sanjay Kishan Kaul and Krishna Murari, JJ has asked the Commission to conduct the physical test of the candidates and adjust them against vacancies notified this year. The Court said,

“We are of the view that not only the appellant but all such candidates who sought deferment on account of pregnancy alone should be called for PET.”

It was brought to the Court’s notice that the total number of ladies who claimed extension of PET on the basis of pregnancy or injuries is stated to be 78 in all, out of which 73 are on account of pregnancy. Noticing that it is on the prodding of the Supreme Court that these examinations were held, the Court said that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. The Court, hence, held that

“it is a fit case where the benefit should be made available to the candidates who may be in the advance stage of pregnancy at the relevant stage of time but have otherwise qualified the test.”

The Court, hence, directed that out of the candidates so called those who qualify the PET and are otherwise found in the merit for appointment alone would be eligible to be considered for appointment, subject to verification of the factum of pregnancy. Such process should be completed within a period of two months. All such people will, however, take merit at the bottom of the current list as it is the vacancies which are now advertised against which the candidates are being adjusted.

The bench, however, clarified that the aforesaid direction was a one-time measure as now the examinations are being held periodically. It, said,

“We are not inclined to open a flood gate effecting the sanctity of the future examination.”

Case Timeline

  • Bihar Police Subordinate Service Commission issued advertisement dated 16th September, 2017 to fill the vacancies for the post of Police Sub Inspector in the State of Bihar.
  • Preliminary examination was conducted on 11th March, 2018
  • Main examination was conducted on 22nd July, 2018.
  • Physical Evaluation Test (PET) which was scheduled for 25th September, 2018.
  • The appellant being in advance stage of pregnancy where the delivery was expected in the month of October, 2018 sought an extension of PET for three to six months on account of being completely on bed rest as advised by the doctor.
  • There was no response to this representation and the appellant thus filed a writ petition before the Patna High Court which was allowed by order dated 3rd October, 2018, directing the Commission to fix any date after two months after informing her of the date of the PET.
  • The Division Bench overturned this decision on 1st March, 2019.

[Khushbu Sharma v. Bihar Police Subordinate Service Commission, 2019 SCC OnLine SC 1323, order dated 27.09.2019]

Hot Off The PressNews

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)


Also read:

Triple Talaq void & illegal | Parliament passes the Muslim Women (Protection of Rights on Marriage) Bill, 2019!

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Legislation UpdatesStatutes/Bills/Ordinances

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 has been passed by the Parliament and notified on 19-09-2018, as signed by the President for promulgation. The ordinance is directed towards protection of married Muslim women and prohibition of pronouncement of talaq by their husbands and any other matter incidental thereto. This ordinance has been promulgated with a view that despite the holding in the matter of Shayara Bano v. UOI, (2017) 9 SCC 1 where triple talaq was declared unconstitutional the practice still continued.

 

Highlights of the Ordinance:

  • Definition of talaqSection 2(b) of the ordinance definestalaqas talaq-e-biddat or talaq of similar form, pronounced by a Muslim husband having effect of instantaneous and irrevocable divorce.
  • Talaq to be void and illegal — This ordinance declares pronouncement of talaq by Muslim husband to be void and illegal and penalizes the commission of same with imprisonment which may extend to 3 years and fine under Section 3 and Section 4 respectively.
  • Allowance — According to the ordinance under Section 5 a Muslim husband who pronounces triple talaq to his wife will be liable to pay to her and dependent children subsistence allowance as may be determined by Magistrate.
  • Custody of Minor Children — In case a Muslim husband pronounces triple talaq to his Muslim wife the custody of their minor children will be with the married Muslim women i.e. his wife provided under Section 6.
  • Cognizable Offence — The offence under this ordinance has been declared as cognizable under Section 7(a).
  • Who can report? — Any commission of offence under this act can be informed to the officer in charge of a police station directly by the married Muslim woman on whom the talaq was pronounced and by any other person related to her by blood or marriage.
  • Compoundable Offence — According to Section 7(b) offence of pronouncing talaq is stated to be compoundable at the instance of married Muslim woman on whom talaq was pronounced but only with the permission of Magistrate.
  • Grant of Bail— Under Section 7(c) bail can be granted only when the Magistrate is satisfied after perusing the application of the accused and hearing married Muslim women upon whom the talaq was pronounced that reasonable ground for granting bail exists.