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On July 31, 2019, Government of India published the concerned Act in its official gazette. Article 4 in the Act has penal provisions which turns the act of declaring instantaneous unilateral divorce by a Muslim man to his Muslim wife a criminal offence.

Now, inter alia one problem I see with this Act is with Article 1(3) which states:

(3) It shall be deemed to have come into force on the 19th day of September, 2018.

That clause turns this law into an ex post facto criminal law. As I understand, Article 20(1) of the Constitution of India prohibits the governments in India from enacting an ex post facto criminal law. Here's what the relevant clause states:

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

So, is the Muslim Women (Protection of Rights on Marriage) Act, 2019 (aka Triple Talaq law) violative of fundamental rights guaranteed by the Indian Constitution?

It is to be noted that the Act came into existence to prevent the violation of Article 14 and 21 (fundamental rights) guaranteed by the same constitution.


Backstory: the Bill for the law was first introduced in the winter session (2018) of the Parliament of India in the wake of the Indian Supreme Court's judgement (August 2018) which declared such instantaneous divorces unconstitutional and asked the Government of India to frame a law to protect the rights of the concerned women.

The Bill lapsed automatically following the dissolution of the 16th Lok Sabha (2014-19). Following the constitution of 17th Lok Sabha in mid 2019, an amended Bill was tabled in the Parliament and was passed by both of its Houses, and received the assent of the President by the end of July.

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Not for that reason

This would not make the Act invalid. The interaction between the two laws would simply mean that criminal prosecution would only succeed for acts on or after the Act came into effect.

So, even though the law purports to invoke criminal sanction for acts before it came into effect, the Constitution says it can’t so it doesn’t. That doesn’t render the law invalid, just unenforceable for that period.

  • The law was enacted in July 2019 but came into force from Sept 2018. So an instantaneous divorce committed since Sept to July is now punishable by this law. How is that not retrospective and violating the fundamental right? That's what I asked. I don't see where you addressed it. – Firelord Aug 18 at 7:33
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    @Firelord: That was clearly explained. Any such prosecution for historic actions will immediately fail. The law doesn't violate any fundamental rights - only a successful prosecution under the law would, and there will be no successful prosecution. – gnasher729 Aug 18 at 12:24
  • @Firelord: Of course, if you did this today, the result wouldn't be that you are divorced and in jail, the result would be that you are not divorced but in jail. It is quite possible that such divorces even in the past would be declared void, so the husband might still be married, and might still be responsible for any damage caused. – gnasher729 Aug 18 at 12:29

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