Centre defends law against triple talaq, says it ‘legitimised and institutionalised abandonment’ of Muslim women

Explaining the context in which the law came to be enacted, the government said “essentially” the “practice” of talaq-e-biddat or instantaneous triple talaq “legitimised and institutionalised abandonment of wives by their husbands” and “did not simply result in a private injury but in a public wrong as it militated against the rights of women and the social institution of marriage itself”.

It said that despite the August 22, 2017, ruling of an SC Constitution bench in the Shayara Bano case, holding it unconstitutional and the assurance of the All India Muslim Personal Law Board, there were reports of such divorces from different parts of the country. “It was seen that setting aside talaq-e-biddat by this Hon’ble Court has not worked as a sufficient deterrent in bringing down the number of divorces by this practice among certain Muslims. Therefore, it was felt that there is a need for State action to give effect to the order of this Hon’ble Court and to redress the grievances of victims of illegal divorce” and the law was made eventually, said the Centre.

When the Bill for this was introduced initially in Parliament, “apprehensions were raised in and outside Parliament regarding the provisions of the pending Bill which enabled any person to give information to an officer in charge of a police station to take cognizance of the offence and making the offence non-bailable. In order to address these “concerns, it was decided to make the offence cognizable, if the information relating to the commission of an offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any other person related to her by blood or marriage. It was also decided to make the offence non-bailable and compoundable at the instance of the married Muslim women with the permission of the Magistrate, on such terms and conditions as he may determine”.

The Centre pointed out that the Supreme Court “has consistently held that the Court cannot go into the wisdom of the measure, but only its constitutionality of legislation. Likewise, the Court is only concerned to interpret the law and if it is valid, to apply the law as it finds it and not to enter upon a discussion as to what the law should be. It is further acknowledged and upheld by this Hon’ble Court repeatedly that it is the function of the Legislature alone to determine what is and what is not good and proper for the people of the land and they must be given the widest latitude to exercise their functions within the limit of their powers else all progress is barred”.

The Union Government contended that “when” the SC itself had set aside the practice of talaq-e-biddat “and if such an act is declared to be an offence punishable under law…”, the court “ought not to interfere into the legislative enactment of making punishable such a manifestly arbitrary act which is already declared under law to be violative of Article 14 of the Constitution”. In this regard, attention of the Hon’ble Court is invited to clause (1) of article 142 of the Constitution…”.

The affidavit said, “Thus, the impugned Act is a piece of legislation made by Parliament to implement the decision laid down by this Hon’ble Court. In view of this, the Writ petition deserves to be dismissed in limine”.

The Centre said, “Defining offences and prescribing appropriate penalties is a core function of the State. Whether or not a particular type of conduct ought to be criminalised, and what punishment is to be imposed for such conduct is to be determined by the legislature in light of the prevailing social circumstances. Whether a particular type of conduct warrants treatment as a civil wrong or a criminal offence is a determination which cannot be made by the Courts”.

It contended that “where Shayara Bano case itself has held the practice of triple talaq to be manifestly arbitrary, it cannot be argued that a law criminalising the practice is manifestly arbitrary. The animating principle of the impugned law itself comes from the finding in the Shayara Bano case that triple talaq is neither Islamic nor legal as can be seen from the law’s Statement of Objects and Reasons. Shayara Bano’s case already recognised triple talaq as an aberrant practice. All that the impugned law does is provide for sanctions to enforce deterrence against following of the practice. This can by no means be called arbitrary and is in fact the very essence of criminal law”.

The Centre also said there is “no basis to the claim that marriages being under personal law, they are exempt from the application of the general criminal law”. It said, “Marriages are a social institution which the State has a special interest in protecting. It is beyond doubt that the state can protect the stability of marriages by resorting to the device of criminal law. Enactments such as the Domestic Violence Act, 2005, the Dowry Prohibition Act, 1961, etc are all enacted under the same general principle as the present law i.e. preserving the sanctity of the institution of marriage”.

“The petitioners attempt to argue that since the practice of triple talaq has no legal effect after Shayara Bano case, it cannot be criminalised…appears to be that since the criminal conduct engaged in had no advantageous legal effect for the perpetrator, it cannot be a crime,” it added. “This argument turns the principle of penal laws on its head. In plain terms, petitioners are essentially attempting to argue that the Act ought not to be criminalised because the attempted illegal conduct was not successful in its object. In doing so, petitioners have overlooked the very basis of criminal law. If sanctions did not exist, the prohibition on criminal conduct itself would become a dead letter to be freely disregarded”.

“If the petitioners agree that the pronouncement of talaq-e-biddat would have no legal effect and consequence and in fact, is manifestly arbitrary after the judgment in Shayara Bano, the petitioners or any other law-abiding citizen of the country ought not to have any grievance with the criminalisation of the said manifestly arbitrary action, as declared by” the SC, said the Centre in its affidavit.