The ordinance was brought into force to protect the rights of married Muslim women and to make the law declared by the Supreme Court more effective.

Rajendra Menon, J.

1. Challenge in this petition under Article 226 of the Constitution of India is made to the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 and a mandamus is sought to declare the entire ordinance as ultra vires the Constitution. The petitioner claiming to be a practicing advocate has approached this Court to challenge the ordinance in question on the ground that it adversely affects his fundamental rights besides affecting the rights of citizens of this country, the ordinance runs contrary to the shared belief, practice and tradition of Islam, is discriminatory in nature and, therefore, should be declared as ultra vires.

2. It is the case of the petitioner that the Supreme Court in the case of Shayara Bano vs. Union of India & Ors., (2017) 9 SCC 1 declared the practice of instant triple talaq to be unconstitutional. Thereafter on 28th December, 2017 Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017. On 9th August, 2018 amendments to the Bill was circulated in the Rajya Sabha and on 10th August, 2018, the Chairman, Rajya Sabha declared that the Bill could not be presented due to lack of consensus and thereafter on 19th September, 2018, it is said that the ordinance in question was promulgated.

3. It is argued that the manner in which the ordinance has been promulgated is arbitrary and unsustainable, by promulgating the ordinance, Union of India has acted in an arbitrary and illegal manner. It is submitted that there are three forms of talaq in Islam, namely, Talaq-e-ahsan, Talaq-e-hasan and Talaq-e-biddat. By declaring Talaq-e-biddat to be an offence, it is argued that the same amounts to excessive and unnecessary legislation when the Hon’ble Supreme Court itself in Shayara Bano vs. Union of India (supra) by a majority judgment of 3:2 has already declared the said form of talaq as invalid and unconstitutional. It is said that once the law laid down by the Supreme Court declares such a practice to be unconstitutional, there is no necessity for promulgating an ordinance, when under Article 141 of the Constitution the law declared by the Supreme Court is binding. It was further argued that the power of promulgating an ordinance has been misused and it is an abuse of the process of law. It further pointed out that by making triple talaq as an offence, the provisions of Articles 14, 15, 21 and 25 of the Constitution are violated. It is submitted that the husband by pronouncing Talaq-e-Biddat does not consider the spouse as his wife and leaves her, that is, he only deserts her and does not divorce. Now, as it is an invalid form of divorce and as desertion of a wife is not punishable under the Indian Law, it is argued that the ordinance which makes the talaq in question as an offence is unsustainable in law.

4. It is further argued that a system which is already declared as illegal and invalid by operation of law laid down by the Supreme Court need not be incorporated in the form of an ordinance to make it punishable. That apart, prescribing the punishment of three years is said to be an arbitrary decision on account of the fact that it is discriminatory as certain other serious offences like offences punishable under Section 147, 304A, 171E of the IPC prescribed lesser punishment of 1 to 2 years. Inter alia contending that on these grounds, the entire ordinance be struck down as ultra vires the Constitution, this writ petition has been filed.

5. Ms.Monika Arora, the learned CGSC appears for the Central Government, refutes the aforesaid contentions and points out that the ordinance has been brought into force by virtue of the provisions of Article 123(1) of the Constitution at a period when the Parliament is not in session and, therefore, at this stage interference into the matter may not be made. That apart, she points out that once in the case of Shayara Bano vs. Union of India (supra) by majority it has been held that the procedure for divorce by adopting the sy