NEW DELHI: Jamiat Ulama-i-Hind on Thursday moved the Supreme Court challenging the constitutional validity of ‘Muslim Women (Protection of Rights on Marriage) Act, 2019’, which punishes Muslim men who divorce their wives through talaq-e-biddat, or triple talaq, claiming that the legislation is discriminatory and inflicts disproportionate punishment for a civil wrong.

Giving details of social work since its establishment in 1919, the Jamiat Ulama-i-Hind through advocate Ejaz Maqbool argued the legislation passed by Parliament on July 31 was unnecessary as the Supreme Court had on August 22, 2017 declared the practice of instant divorce through triple talaq as unconstitutional. The Jamiat had argued before the SC in the Shayara Bano case that “triple talaq was protected under Articles 25 and 26 of the Constitution and formed part of the personal laws of the Hanafi Muslims under Sharia”.

A year after the SC ruling, the Union government on September 19, 2018 promulgated Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 providing for imprisonment of up to three years for Muslim men who resort to triple talaq for instantaneous divorce. The ordinance was re-promulgated twice before Parliament finally enacted a law which received the President’s assent on July 31 this year.

The petitioner termed Section 4 of the Act, prescribing punishment of up to three years’ imprisonment with fine, as an ill-conceived provision imposing excessive and discriminatory penalty on Muslim men resorting to triple talaq. “Lesser punishment is prescribed in Indian Penal Code for many offences which are far graver - rioting (2 years), bribery (one year), food adulteration (six months), causing death due to rash and negligent driving (2 years),” it said.

The Jamiat said under Hindu law, desertion of a spouse is not an offence but only a ground for divorce. Moreover, the new legislation has made pronouncement of triple talaq a cognizable and non-bailable offence whereas causing death by rash and negligent driving is a bailable offence.

The petitioner said, “Crime and punishment are two sides of the same coin. Every punishment must be proportionate to the crime. The notion ‘just deserts’ require that a sentence being imposed must be proportionate to the offender’s culpability is applicable to criminal jurisprudence.”

“There are several more grave offences which are not punishable with such a stringent punishment and are bailable. In fact, desertion of a wife by the husband under Hindu law is not even an offence. This clearly shows that the provisions, as far as related to criminality of pronouncement of triple talaq, are disproportionate and excessive ... and deserves to be set aside as being violative of Articles 14, 15 and 21 of the Constitution,” the petition said.

