SC seeks FIR details in triple talaq cases
The bench, also comprising justice Sanjay Kumar, passed the directive while hearing a batch of petitions filed by Muslim organisations challenging the constitutionality of the 2019 law.
The Supreme Court on Wednesday directed the Union government to provide data on criminal cases registered under the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises the pronouncement of instant triple talaq by Muslim men, undertaking the judicial scrutiny over the necessity and proportionality of the penal provisions imposed by the law.
“We want to have the list of cases that have been filed under the offences mentioned in the 2019 Act. Also, tell us whether this (penal provisions) has been challenged anywhere else too and if any other high court is dealing with it. Submit data on the charge sheets filed in such cases too,” a bench, led by Chief Justice of India Sanjiv Khanna, ordered.
The bench, also comprising justice Sanjay Kumar, passed the directive while hearing a batch of petitions filed by Muslim organisations challenging the constitutionality of the 2019 law. The court specifically asked the Union government to submit details on the total number of first information reports (FIRs) registered under Sections 3 and 4 of the Act across India.
The 2019 Act makes the practice of triple talaq (talaq-e-biddat) punishable by up to three years in prison and a fine, with the offence being cognizable and non-bailable. The law followed a 3-2 majority verdict by the apex court in 2017 declared the practice, which allowed a Muslim man to divorce his wife unilaterally and instantaneously by uttering “talaq” three times, as unconstitutional and void.
Challenging the law, the petitioners, including Samastha Kerala Jamiathul Ulama, Jamiat Ulama-i-Hind, and the Muslim Advocates Association (Andhra Pradesh), have argued that since the Supreme Court had already declared triple talaq invalid in 2017, there was no justification for making it a criminal offence.
During the brief hearing on Wednesday, the bench remarked that even if triple talaq is pronounced, it does not result in a valid divorce, meaning the marital relationship remains intact.
“If the divorce itself is not recognised, the relationship then continues and there is no separation. But now you have penalised the very act of pronouncing it… We want the list of cases all over India where FIRs have been filed. Now that all FIRs are centralised, just give us a list of that,” the CJI told solicitor general (SG) Tushar Mehta.
Mehta, representing the Union government, defended the law by arguing that criminalisation is a matter of legislative policy and necessary to ensure justice for Muslim women. He contended that several laws protecting women’s rights prescribe even harsher punishments and that the three-year maximum sentence under this Act is not disproportionate.
Mehta also dismissed the argument that the law criminalises a mere verbal pronouncement, pointing out that Section 506 of the Indian Penal Code (IPC) penalises threats and verbal utterances under certain conditions.
However, advocate Nizam Pasha, representing the petitioners, countered that the law unfairly targets the Muslim community. “A Hindu or Christian man who abandons his wife is not treated as a criminal. But if a Muslim man says three words, he can be jailed for three years. That is discrimination,” Pasha argued.
Senior advocate MR Shamshad, also for the petitioners, contended that domestic violence laws already provide remedies for matrimonial disputes and that introducing a separate criminal law for triple talaq was unnecessary.
At this point, the bench intervened to observe that the petitioners were also not advocating for the recognition of triple talaq but were questioning the necessity of criminalising it.
“We are sure none of the lawyers here are saying that the practice was correct. But what they are saying is -- can it be criminalised when the practice is already banned and no divorce takes place by uttering talaq three times at once?” CJI Khanna observed.
The court directed the Union government to submit data on the total number of cases pending under Sections 3 and 4 of the Act, including FIRs registered in rural areas. It also asked all parties to file written submissions in the matter.
In response to the legal challenge, the Union government defended the law, asserting that the Supreme Court’s 2017 ruling had not been a sufficient deterrent. Filing an affidavit in August 2019, the government claimed that reports of triple talaq continued to emerge even after the ruling, prompting the need for legislative action.
“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,” the government stated in the affidavit.
The affidavit further argued that criminalising instant triple talaq was essential for protecting Muslim women’s dignity and fundamental rights. It further stated that marriage is a social institution that the State has a legitimate interest in protecting, and criminal law is a valid mechanism for ensuring its stability.
“Marriages are a social institution which the State has a special interest in protecting. 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,” the affidavit noted.
