The practice of ‘triple talaq’ is “fatal for the social institution of marriage” and “makes Muslim women’s condition very pathetic”, the government argued Monday in an affidavit filed before the Supreme Court.
The government said the top court’s setting aside of the practice – that had been held valid among certain Muslim communities – in 2017 had “not worked as a sufficient deterrent in bringing down the number of divorces by this practice” among members of those communities.
“Victims of ‘triple talaq’ have no option but to approach the police… and the police were helpless as no action could be taken against husbands in the absence of punitive provisions in the law. In order to prevent (this) there was an urgent need for stringent (legal) provisions,” the government said.
The government’s affidavit was in response to a petition arguing that since the Supreme Court had invalidated the practice of ‘triple talaq’ there is no need to criminalise the same.
The original affidavit was filed earlier this month by the Samastha Kerala Jamiathul Ulema, which describes itself as “an association of eminent Sunni scholars”. Among other points, the petitioner called the Muslim Women (Protection of Rights on Marriage) Act, 2019, is unconstitutional.
In a detailed response made public this morning the government firmly dismissed the petitioners’ claims, arguing that the practice of ‘triple talaq’ “violates fundamental rights and rights of equality guaranteed to women under the Constitution”.
“The Parliament, in its wisdom, enacted the impugned Act to protect rights of married Muslim women being divorced by ‘triple talaq’, and the law in question helps ensuring the larger constitutional goals of gender justice and equality of married Muslim women, the affidavit added.
The government also pointed out the Supreme Court itself has held in the past that it cannot go into the wisdom of laws passed by Parliament or enter into discussions as to what the law should be.
“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 widest latitude to exercise their functions within the limit of their powers else all progress is barred…” the government argued.
“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 prevailing social circumstances…”
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