November 02, 2018:

On Friday, Supreme Court bench of Chief Justice Ranjan Gogoi, Justice K. M. Joseph & Justice Hemant Gupta was not inclined to entertain the petition challenging the constitutionality of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018.

It imposes a maximum sentence of 3 years on a Muslim husband for pronouncing Triple Talaq.

Chief Justice asked,“What was the date of the ordinance?”

When informed that the ordinance was promulgated on September 19, he stated, “the ordinance is two months old. We do not want to interfere with it. We do not want to go into the merits.”

Senior Counsel Raju Ramachandran insisted that the ground for challenge appears in the ordinance itself.

In view of Article 123 envisaging the need for “immediate action” in issuing an ordinance, and in the present instance, with the practice of Triple Talaq having been struck down by a constitution bench of the Supreme Court in Shayara Bano v. UOI (2017) there was no surviving action, forget about an “immediate action”.

Mr. Ramachandran said, “This easy resort of Ordinance is a fraud on the constitution.”

Chief Justice remarked,“There is no need to go so high as to call it a fraud. If we were to issue notice on the petition but not stay the operation of the ordinance, of what benefit would it be?”

Another advocate said, “In the interim, prosecutions (of Muslim husbands) could happen which are not tenable in law."

Concluding the hearing the Chief Justice said,“If you want to press the petition, we will dismiss it. If you want to withdraw, then withdraw.”

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed in the Lok Sabha in December last year.

However the Bill didn't survive a day. The Centre prompted to take the Ordinance route after introducing a few changes to the Bill.

A petition challenging the Ordinance has now been filed by Samastha Kerala Jamiathul Ulema, a religious organisation of the Sunni Muslim scholars & clerics based in Kerala, through Advocate Zulfiker PS.

It essentially demands that the Ordinance be struck down for violation of Articles 14, 15, 21 and 123 of the Constitution of India.

It asserts that Article 123 enables the promulgation of ordinances only in instances requiring “immediate action”. It then highlights the fact that with a Constitution Bench of the Supreme Court having struck down the practice of triple talaq as unconstitutional in Shayara Bano v. Union of India, “there was no surviving action, let alone “immediate action” warranted to reiteratively abolish the practice and penalize Triple Talaq by way of an Ordinance under Article 123.”

The petition further questions the intent behind the Ordinance, asserting that the same has not been passed with the intention of abolishing Triple Talaq, but for punishing Muslim husbands. It also points out that the penal provisions were introduced without undertaking any study into the extent of prevalence of the practice.

Section 4 imposes a maximum sentence of 3 years imprisonment when a Muslim husband pronounces Triple Talaq. The offence is cognizable & non-bailable as per Section 7.

Creation of an offence may be the prerogative of the legislature.

The Government is duty bound to act reasonably & sensibly, not merely in administrative matters but sovereign matters.

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