Supreme Court declines to examine triple talaq ordinance

The Supreme Court on Friday refused to stay the Centre's ordinance on Triple Talaq, finding no ground to interfere with the month-old law with the Parliament set to meet in a month or two. Gauging the mood of the Court, the petitioners chose to withdraw the plea keeping their powder dry for a future date.

The Muslim Women (Protection of Rights on Marriage) Ordinance 2018 came into force on September 19 at a time when the Bill in this regard was pending consideration with the Rajya Sabha. The ordinance makes triple talaq a punishable offence with the Muslim husband who divorces his wife by uttering 'talaq' three times punishable with a three-year sentence that is non-bailable.

The Ordinance was challenged by the largest Muslim organisation from Kerala called Samastha Kerala Jamiatul which found no rationale in introducing the Ordinance when a Bill in this context is yet to meet the approval of the Upper House. Although Lok Sabha cleared the Bill on December 28, 2017, it was introduced in Rajya Sabha on January 2, 2018, where it is still pending.

Appearing for the petitioners, senior advocate Raju Ramachandran submitted that the Ordinance was a fraud on Constitution as it introduces penal consequence on a practice which has otherwise been declared illegal by the Supreme Court. Triple talaq also known as talaq-e-biddat was declared unconstitutional by a 3:2 majority bench of the Supreme Court on August 22, 2017. The Court had left it to the Centre to enact a law in this regard.

The bench of Chief Justice Ranjan Gogoi, Justices KM Joseph and Hemant Gupta found it unnecessary to examine the merits of the Ordinance when an outcome on the pending Bill could result in the ensuing Winter Session of Parliament. The judges said, "Almost two months are getting over since the issuance of Ordinance. Even if we issue notice on the petition but don't stay, it will be a piecemeal exercise as the Winter Session of Parliament is coming."

The petitioners argued that the Ordinance could be tested on merits and stayed as has been the practice with several Ordinances in the past. But the bench indicated that the petition only questions the issuance of Ordinance which will have no significance once the Bill is taken up in Rajya Sabha. An ordinance is passed under Article 123 on urgent issues which need to be addressed when Parliament is not in session. It is valid for six weeks from the date the next session of Parliament begins.

The petitioner wondered what urgent conditions emerged for the Centre to issue the Ordinance. Moreover, there was no justification to suggest statistically that even after SC judgment, triple talaq continued "unabated". The petition said, "A welfare-oriented legislation would not purport to criminalise marital discord and moreover, particularise the criminalisation only to one community."

As the bench was not inclined to entertain the challenge, on the petitioner's request, the Court allowed the petition to be withdrawn.