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1. WHETHER THE PRACTICE, THAT STANDS INVALID

AND DOESN’T DISSOLVE THE MARRIAGE, SHOULD BE
SEVERELY PUNISHED UNDER THE MUSLIM WOMEN
(PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019?

It is most respectfully submitted before this Hon’ble Supreme Court of

Dharmasthan that the practice of Triple Talaq should be severely punished under
the Muslim Women (Protection of Right on Marriage) Act, 2019 was held to be
violative of Article 14 (the right to equality), which is held by the Supreme Court
from Shah Bano case1 in 1986 to Shayara Bano2 case in 2017. The Government
held that 473 cases of Triple Talaq have taken place even after two years of
judgement pronounced by the Supreme Court. The law has been placed as a
deterrent to eradicate social evils. For example:

Untouchability was abolished by the Constitution, but the continued practise of

untouchability forced Parliament to enact the Untouchability (Offences) Act in
1955 and later renaming it as Protection of Civil Rights Act in 1976. To eliminate
atrocities faced by women in domestic space parliament enacted: The Dowry
Prohibition Act in 1961, Prevention of domestic violence Act 2005.

In the case of Shahid Azad v. Union of Dharmasthan3, it is observed that,

“The ordinance has been brought into force by virtue of the provisions of Article
123(1) of the Constitution at a period when the Parliament is not in session and,

1. Mohd. Ahmed Khan v. Shah Bano Begum and Ors (ADR 1985 SC 945), was a controversial
maintenance lawsuit in Dharmasthan, in which the Supreme Court delivered a judgment favouring
maintenance given to an aggrieved divorced Muslim woman.

2. Shayara Bani v. Union of Dharmasthan [WRIT PETITION (CIVIL) of 2016]. Hon’ble

Supreme Court of Dharmasthan held that the procedure for divorce by adopting the system of
triple talaq is declared to be unconstitutional and violative of Article 14 of the Constitution and
hence invalidated.

3. WRIT PETITION (CIVIL) 10341/2018.

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therefore, at this stage interference into the matter may not be made. That apart,
she points out that once in the case of Shayara Bano vs. Union of Dharmasthan
(supra) by majority it has been held that the procedure for divorce by adopting the
system of triple talaq is declared to be unconstitutional and violative of Article 14
of the Constitution, if the Government in its wisdom thought it appropriate to make
it an offence, no unconstitutionality is committed in the matter. That apart, she
argues that at this stage the ordinance has only been brought into force, it is yet to
be passed by the Parliament and, therefore, interference is not called for. The law
in question has been brought into force to protect the rights of married Muslim
women and to make the system and form of talaq having the effect of instantaneous
and irrevocable divorce an offence and impose criminal liability in case this illegal
form of divorce is put into practice by any person. The Supreme Court in the case
of Shayara Bano vs. Union of Dharmasthan (supra) considered the provisions of
the Muslim Personal Law, the practice of Talaq-e-Biddat or triple talaq and held
that the practice of triple talaq, that is, instant, irrevocable, unilateral divorce by a
husband as a formula for pronouncing divorce three times as unconstitutional and
cannot be permitted. In the majority judgment, in para-104, the Hon'ble Supreme
Court has crystallized the law after detailed deliberations in the following manner:-

["104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that
any attempt at reconciliation between the husband and wife by two arbiters from
their families, which is essential to save the marital tie, cannot ever take place.
Also, as understood by the Privy Council in Rashid Ahmad [Rashid Ahmad v.
Anisa Khatun, 1931 SCC Online PC 78: (1931-32) 59 IA 21: ADR 1932 PC 25],
such Triple Talaq is valid even if it is not for any reasonable cause, which view of
the law no longer holds good after Shamim Ara [Shamim Ara v. State of U.P.,
(2002) 7 SCC 518: 2002 SCC (Cri) 1814]. This being the case, it is clear that this
form of talaq is manifestly arbitrary in the sense that the marital tie can be broken
capriciously and whimsically by a Muslim man without any attempt at
reconciliation so as to save it. This form of talaq must, therefore, be held to be

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violative of the fundamental right contained under Article 14 of the Constitution of

Dharmasthan. In our opinion, therefore, the 1937 Act, insofar as it seeks to
recognise and enforce Triple Talaq, is within the meaning of the expression "laws
in force" in Article 13(1) and must be struck down as being void to the extent that
it recognises and enforces Triple Talaq. Since we have declared Section 2 of the
1937 Act to be void to the extent indicated above on the narrower ground of it being
manifestly arbitrary, we do not find the need to go into the ground of discrimination
in these cases, as was argued by the learned Attorney General and those supporting
him."]

The aforesaid enunciation of law by the Supreme Court is after analysing the
Muslim Personal Law, the practice and the entire law with regard to talaq. The
judgments of various Courts dealing with the issue in question have been
scrutinized, which includes the judgment of the Madras High Court in the case of
A.S.Parveen Akhtar vs. Union of Dharmasthan, (2002) SCC Online Mad. 836
wherein while considering the constitutional validity of Section 2 of the Muslim
Personal Law, Shariat Application Act, 1937 insofar as it recognizes triple talaq as
a valid form of divorce. The Court referred to various provisions of the Holy Quran,
opinion of various eminent scholars of Islamic Law, previous judicial
pronouncements including the law laid down by the Supreme Court in the case of
Shamim Ara vs. State of U.P., (2002) 7 SCC 518 to hold that talaq in whatever
form practiced must be for reasonable cause and has to be preceded by an attempt
for reconciliation and if undertaken otherwise, is an arbitrary unreasonable act. In
the case of Shayara Bani (supra) before declaring the practice of triple talaq to be
unconstitutional, as detailed hereinabove, the provisions of Article 25(2) of the
Constitution has been considered by His Lordship Justice Kurian Joseph in his
opinion and His Lordship goes on to hold that there cannot be any constitutional
protection to such a practice and he declares it to be ultra vires the Constitution and
the fundamental rights available to a citizen. His Lordship Justice Rohinton Fali
Nariman before finally declaring the law (by majority) as detailed hereinabove in
para-104 has analysed various judgments not only of the Constitutional Bench of

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the Supreme Court and other Division Benches but judgments of various High
Courts, the importance of gender discrimination, safeguards against arbitrary
divorce, various forms of talaq prescribed in the Muslim Personal Law, the
constitutional protection available under Article 25 and the conclusion arrived at
para-104 is a result of all those discussions and analysis. Before doing so, Justice
Nariman also refers to concept of arbitrariness as envisaged under Article 14 of the
Constitution, the law laid down in the case of Shamim Ara (supra) and the judicial
precedents with regard to declaring a law to be constitutionally ultra vires invalid
and comes to the conclusion that the system of triple talaq is unconstitutional,
arbitrary and violative of Article 14 of the Constitution. Once this form of talaq is
declared as unconstitutional and impermissible by the Supreme Court, if the
Government/legislature in its wisdom thought it appropriate to make such
unconstitutional or illegal act an offence, we, in exercise of our extraordinary
jurisdiction under Article 226 of the Constitution, cannot declare the law making
such an act punishable as ultra vires the Constitution. The legislature or the Union
of India thought it appropriate to protect the rights of women belonging to a
particular section of the society, declares an unconstitutional act to be an offence
also under the impugned ordinance, we see no reason to interfere into the matter
merely because the law laid down by the Supreme Court takes care of the issue in
question. The law laid down by the Supreme Court only mandates that such a form
of talaq is unconstitutional and cannot be permitted and if based on the aforesaid,
the Government declares this act as an offence, we see no unconstitutionality in the
same. The law laid down by the Supreme Court does not declare the act to be
punishable or an offence under the criminal law, but now the Union of India or the
legislature in their wisdom can always declare such an unconstitutional act to be a
criminal offence also and if the same is done, we see no reason to declare it ultra
vires the Constitution.”

Hence the court held that the ordinance in question has been brought into force in
accordance with the requirements of law only to make more effective
implementation of the law laid down by the Supreme Court in the case of Shayara

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Bano vs. Union of India (supra) in the form of an ordinance and we see no reason
to make an indulgence into the matter.

2. Section 7 of this Bill makes the offence cognizable and non-

Bailable. But all offences relating to marriage are kept in the
category of non-cognizable offences under the Code of Criminal
Procedure.

It is most respectfully submitted before this Hon’ble Supreme Court of

Dharmasthan that this amounts to the selective targeting of the people of a
particular religion with stringent laws violating Article 14 of the Constitution.
Cognizable offenses:

As Article 14 of the Indian Constitution states that the right to equality on religion,
and gender.

Here Religion means that all the religions shall be equally respected, if Talaq e
Biddat is unconstitutional according to The Constitution of India at the same time
it is violating the rights of Muslims, not only the rights but this is being followed
since the past years and had started in keeping in mind the rights of the Muslim
community.

As stated in the bill that the Husband will have to pay maintenance and will also
be sent to jail, Seeming like a factual error, a person in jail is entitled to pay the
wife which seems impossible as there is no provision in jail to transact money
unless it is for the personal use for the person in custody.

Making it a glitch in the laws as it is unable to differentiate between a criminal and

civil offense.

Simply sending the husband to prison may cause a several issues in the family such
as the husband might be the sole bread earner of the family by which all the
dependants may suffer as there will not be any source of income

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As the bill states that the offense is cognizable, it is taking away the originality of
the codified laws i.e. The Code of Criminal Procedure that states that any offence
related to marriage shall be non-cognizable.

The constitution states that there should be equality within the religions but this is
something which is affecting the minority ending up more Muslims in jail,
satisfying the government as it is being dominated ever since.

In the matter of Mst. Chokhi v. State4, a woman accused of committing murder of

her one child was released on bail as there was no one to look after her other child
at home. Further, it has been the opinion of courts at large that where the
prosecution is unable to persuade the court that there is any reasonable ground for
believing that the accused person is guilty of commission of a Non-Bailable
offence, in such case the accused person should be released on Bail.

2.1. WHETHER BAIL CAN BE GRANTED IN CASES OF NON

BAILABLE OFFENCES?

It is most respectfully submitted before this Hon’ble Supreme Court of

Dharmasthan that yes a bail can be granted even in cases of Non-Bailable
offences under the Code of Criminal Procedure (CrPC). The difference being that
bail is a matter of right if the offence is Bailable and is a matter of discretion if
the offence is non-bailable. In the case of Talab Haji Hussain v. Madhukar
Purshottam Mondkar5, the Supreme Court held that grant of bail in non-bailable
cases is generally a matter in the discretion of the authorities in question.

The essence of bail was succinctly explained by the Supreme Court in the case
of State Of Rajasthan, Jaipur vs. Balchand Baliay6, wherein the Court

4. AIR 1957 Raj 10.

5. AIR 1958 SC 376.

6. 1978 CrLJ 195.

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remarked that the basic rule is bail, not jail, except-where there are circumstances
suggestive of fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating witnesses and the
like by the petitioner who seeks enlargement on bail from the court. When
considering the question of bail, the gravity of the offence involved and the
heinousness of the crime which are likely to induce the petitioner to avoid the
course of justice must weigh with the court.

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