Triple talaq law: Centre defends 2019 law in Supreme Court, says practice 'fatal' for marriage

New Delhi: The Centre has defended before the Supreme Court its 2019 law making the practice of triple talaq among Muslims as punishable offence upto three years jail term for it was neither legal nor has got religious sanction for it allowed instantaneous voiding the martial tie, and legitimised abandonment of wives of husbands.

"The practice of Tala-e-Biddat (instant pronouncement of triple talaq) 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," the Ministry of Law and Justice said.

In an affidavit, the government said the Constitution bench in 2017 Shayara Bano case by majority of 3:2 itself has held the practice of triple talaq as unconstitutional, it cannot be argued that a law criminalising the practice is manifestly arbitrary.

"The Shayara Bano 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," it said.

The government's response came in a writ petition filed by Samastha Kerala Jamiathul Ulema challenging the validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The affidavit said there is no basis to the claim that marriages being under personal law, they are exempt from the application of general criminal laws.

"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 resort to the 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," it said.

The government also rejected a contention that since the criminal conduct engaged in had no advantageous legal effect for the perpetrator, it cannot be a crime.

"This argument turns the principle of penal laws on their 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," it said.

The government also 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 said.