New Delhi: The Delhi high court has sought the Centre’s reply on a plea seeking to declare as unconstitutional the provision penalising a Muslim husband for pronouncing ‘talaq’ upon his wife.
The plea said as the pronouncement of triple talaq’ or talaq-e-biddat’ is already declared void, the provision in law to penalise such an act is onerous and inconsequential.
A bench of Justices Vipin Sanghi and Rajnish Bhatnagar refused to stay, however, investigations or trials in all the FIRs registered in Delhi under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act 2019, till the pendency of the present petition.
The bench said its appears prima facie that the object of Section 4 (Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment for up to three years, and be liable to a fine) is to discourage the age-old practice.
The legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a competent court, and is struck down. Prima facie it appears to us that the object of Section 4 of the aforesaid Act is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.
Also read: How Much Freedom Did the Triple Talaq Bill Bring for Muslim Women?
The purpose of Section 4 appears to be to provide a deterrent against such practice. Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence. This is our prima facie view. We are, therefore, not inclined to grant any interim relief to the petitioner, the bench said.
The court was hearing a plea by a man, a lawyer, seeking to declare the particular provision under the Act as void ab initio, ultra vires, unconstitutional, discriminatory and violative to the fundamental rights of Muslim men like him.
His wife has filed an FIR against him under the provision.
Advocate Tarun Chandiok, appearing for the lawyer, submitted that once triple talaq has been rendered void and illegal, there is no justification for criminalising pronouncement of triple talaq, since it would have no legal effect on the status of the Muslim marriage.
Since it is of no consequence and does not end the marital status of the wife, who may be subjected to triple talaq, there is no purpose of penalising the act, he argued.
The counsel further sought to refer the issue to a larger bench, which was declined by the High Court of Delhi.
The court also refused to grant the interim relief to direct the Delhi Police Commissioner to refrain from registering FIRs alleging the commission of an offence under Section 4 of the Act during the pendency of the writ petition.
The High Court issued notice to the Centre on the main petition and asked it to file its reply within eight weeks.