August 3, 2019 5:03:14 am
Samastha Kerala Jamiathul Ulema, a Kerala Sunni Muslim outfit, moved the Supreme Court on Friday challenging the constitutionality of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which makes the practice of instant triple talaq a penal offence.
The petition stated that the law, passed by Parliament on July 30, is “class specific to Muslims” and “violative of Articles 14, 15 and 21 of the Constitution”.
“The intent behind the Ordinance (which preceded the Act) is not abolition of Triple Talaq but punishment of Muslim husbands,” the plea said, adding “protection of wives cannot be achieved by incarceration of husband”.
“The impugned Act applies across the country and thus has national ramifications. The Ordinance has introduced penal legislation, specific to a class of persons based on religious identity. It is causative of grave public mischief, which, if unchecked, may lead to polarization and disharmony in society,” it said.
The plea said that Article 123 of the Constitution enables the promulgation of ordinances only in instances requiring “immediate action” and that there was no such emergent reason to invoke it in the case of instant triple talaq.
“Triple Talaq is a practice that dates back to about 1,400 years. It was legally recognized and enforced till the majority judgment in Shahyara Bano… Despite the Central Government having had ample opportunity to abolish the practice before the judgment in Shahyara Bano… the Government chose to await the adjudication in Shahyara Bano… Once there was declaration made by this Hon’ble Court under Article 141 in Shahyara Bano…, there was no surviving action, let alone ‘immediate action’ warranted to… abolish the practice and penalize Triple Talaq by way of an Ordinance under Article 123. Hence the promulgation of impugned Ordinance is against the spirit of Article 123 and a fraud on the Constitution,” the Samastha said.
The Samastha, an organisation of Muslim clerics and scholars in Kerala, controls most of the mahallus (mosque committees) in Kerala. It has a close relationship with the leadership of Indian Union Muslim League, an ally of the Congress.
Samastha general secretary Alikutty Musaliyar said the Muslim community has concerns about the new law. “It is a violation of fundamental rights and against equality. There is discrimination on the basis of religion,” he said.
Meanwhile, a PIL was filed in the Delhi High Court seeking to quash certain sections of the Act.
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