INTRODUCTION
The social movement to abolish talaq-e-biddat i.e. triple talaq has been a long-standing movement in the judicial history of India. The Supreme Court, in the case of Shayara Bano v. Union of India and Anr had finally put an end to the practice declaring it to be against the ethos of the Constitution. The aforementioned Act intends to protect the interests of Muslim women who were furthering the constitutional goals of Gender Justice and Equality.
The Act criminalises the pronouncement of triple talaq in all its forms including, electronic form and prescribes punishment for the same. In the present article, the Act is evaluated under the scrutiny of Article 14 of the Constitution which has been a major debate since the passage of the bill. In the article the author will first highlight the salient features of the Act followed by scrutiny under the constitutional tests developed by the Judiciary, to check legislative action under Article 14. Lastly, the author will critique the Act in relation to Article 14 and suggest a way forward.
SALIENT FEATURES OF THE ACT
- Any offence under the Act is to be tried by the “Judicial Magistrate of the first class, exercising jurisdiction under the Code of Criminal Procedure, 1973”.
- The Act prescribes a punishment of imprisonment up to 3 years and fine.
- The offence under the Act is cognizable, non-bailable and compoundable at the instance of a Muslim woman who is the victim of triple-talaq.
- A subsistence allowance is to be paid by the husband to the wife, taking into consideration the dependent child/children if any, as determined by the Magistrate.
- The custody of the minor child/children if any remains with the Muslim woman.
- No bail application is to be entertained until the woman on whom the talaq has been pronounced, is heard.
CONSTITUTIONAL TESTS UNDER ARTICLE 14
Article 14 of the Constitution mandates that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The judiciary has developed the following tests to check whether a legislative action falls within the ambit of Article 14.
- Reasonable Classification based on Intelligible Differentia
- Reasonable Nexus Test and
- Non-Arbitrariness
Read the full article on The RMLNLU Law Review Blog.