Jailing errant husbands will not help in long run

The Samastha Kerala Jamiathul, a religious organisation of Sunni Muslim scholars and clerics in Kerala, has moved the Supreme Court questioning the constitutional validity of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018.

According to the petitioner organisation, the intent behind the ordinance is not abolition of triple talaq but punishment of Muslim husbands as Section 4 imposes a maximum sentence of three years imprisonment when a Muslim husband pronounces triple talaq.

The petitioners contend that “If the motive is to protect a Muslim wife in an unhappy marriage, no reasonable person can believe that the means to ensure it is by putting an errant husband in jail for three years and create a non-bailable offence for merely saying Talaq-Talaq-Talaq.”

The Samastha Kerala Jamiathul pointed out that by virtue of the Supreme Court judgment in the Shahbano case of 30 years ago, “The said utterance was without legal sanction or effect. The marriage survives, regardless of such utterance. It is difficult to imagine why the mere utterance of meaningless words should attract a three year sentence for the husband.”

The organisation believes there is no reasonableness or constitutional logic for making the procedural infirmity in effecting divorce a punishable offence for members of the Muslim community alone and such legislation cannot withstand the test of Article 14 of the Constitution.

The Samastha Kerala Jamiathul also contended that “a truly welfare-oriented legislation would promote amicable resolution of matrimonial disputes, regardless of community.

A welfare-oriented legislation would not purport to criminalise marital discord and particularise the criminalisation.”