National University of Study and Research in Law, Ranchi

Shayara Bano vs Union Of India(Triple Talaq)

A Case Analysis

Submitted to: Dr. Ravindra Pathak Sir, NUSRL, Ranchi.

Submitted by: Anirudh Pratap Chandra,Semester IV, NUSRL, Ranchi.

 TABLE OF CONTENTS
Acknowledgement …………………………………………… iii
Some Essential Details of the Case………………………….. iv
Facts of Case………………………………………………….. v
Issue of the case ……………………………………………… vi
Judgement of the case……………………………………….. vii
Minority Judgement…………………………………………. ix

Why this case is important?…………………………………. x

Critical Analysis……………………………………………… xi

Conclusion……………………………………………………. xiii
 Acknowledgement
Being a student of the first semester, this research was one of the first projects that I have completed
after having joined my law school. The success and final submission of this research article required
a lot of guidance and assistance from many people and I am extremely privileged to have got the
right mentors all along the completion of my research article.

I take this opportunity to convey my sincere gratitude to all such mentors. Dr. Ravindra Pathak Sir,
my Legal Method teacher has not only helped me pick a good topic but has also guided me by
answering all my doubts through the course of the making of this research. Next, I would like to
acknowledge my seniors who have guided me to the best of their abilities and prior experiences. My
friends and family have also been a great source of encouragement who have pushed me towards
working consistently and helped me curb my tendency of procrastinating.

I would conclude by admitting that I have sincerely put in a lot of efforts into this research and have
presented it in the best manner possible according to my skills and learning. I hope it succeeds to
impress you and leave a positive apprehension of my research and writing skills.

Thank you.
Anirudh Pratap Chandra
Student, NUSRL, Ranchi
 SOME ESSENTIAL DETAILS OF THE CASE

CASE TITLE: Shayara Bano vs Union Of India

CITATION: (2017) 9 SCC 1

COURT: The Supreme Court of India

APPELLANT: Shayara Bano

RESPONDENT: Mukul Rohatgi, Kapil Sibal, Manoj Goel.

BENCH: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton
Fali Niraman, Justice Uday Lalit, Justice K.M. Joseph.

SUBJECT: Triple talaq is not essential to religion.

DATE OF JUDGEMENT: 22 August 2017

 Case Analysis- Sayara Bano v. UOI1 ( Triple Talaq Case)

Facts of the case - Shayara Bano married to Rizwan Ahmed as per Shariat Act at Allahabad.
Their marital union continues to 15yrs. In 2015, Rizwan Ahmed divorced her wife through triple
talaq.
Triple talaq also called Talaq-e biddat. It is an instant & irrevocable divorce practiced by Muslims
in India, especially the adherence of Hanafi i.e Sunni sect of Islamic school of jurisprudence. Under
this practice, a muslim man have given inherent power to divorce his wife arbitrarily and
unilaterally only by mentioning the word “talaq” (means divorce in Arabic word) consecutively
three times either orally or in written form through talaq-nama.
Sayara Bano filed a Writ Petition under Article 32 approaching to the Supreme Court requesting to
uphold the three practices i.e talaq-e-biddat, polygamy, nikah halala. As these practices were
unconstitutional and violates Article 14, 15, 21 and 25 of the Indian Constitution.
Before triple talaq, on 09.04.2015 petitioner left her matrimonial home along with her two children
in the company of her father. The respondent claims that he continue to visit her parental home,
giving her maintenance and asking her well being. On 03.07.2015, respondent asked father of
Shayara Bano to send her back to her matrimonial home. The respondent was informed by her
father after few days that the petitioner was not inclined to live with the respondent. After that on
07.07.2015 father of petitioner left over both the children Mohammed Irfan and Umaira Naaz to
Allahabad showing an impression that petitioner want to return her matrimonial home. Rizwan
Ahmad finding himself in the above predicament, approached the Court of Principle Judge, Family
Court of Allahabad requesting for restitution of conjugal rights.2 But the wife preferred Transfer
Petition3 under Section 25 of CPC Act, 1908, read with Order XXXVI-B of the Supreme Court
rules,1966, for the transfer of matrimonial case filed by the husband pending at Allahabad, U.P to
the Court of Principle Judge, Family Court, Kashipur, Uttarakhand. Due to averment made my
petitioner, Rizwan Ahmad felt that his wife was not ready for reconciliation and withdraw his suit
filed at Allahabad. And divorced his wife Shayara Bano by serving upon her talaq-nama.

Issue of the case -

After analysing the facts the Hon’ble Supreme Court made some issues regarding which the whole
case was based as follows:

1 Writ Petition No.118 of 2016

2 Matrimonial Case No. 1144 of 2015

3 Transfer Petition (C) No. 1796 of 2015

1.Does the judgment of the Privy Council in the Rashid Ahmad case, upholding ‘talaq-e- biddat’,
require a relook?

2. Has ‘talaq-e-biddat’, which is concededly sinful, sanction of law?

3. Is the practice of ‘talaq-e-biddat’, approved/disapproved by “hadiths”?

4. Is the practice of ‘talaq-e-biddat’, a matter of faith for Muslims? If yes,whether it is a constituent

of their ‘personal law’?

5. Does ‘talaq-e-biddat’, violate the parameters expressed in Article 25 of the Constitution?

6. Does Shariat Act, 1937 gives applicability to triple talaq.

Judgement of the case-
The constitutional bench of SC judges set aside the practice of Triple Talaq and held it
unconstitutional on 22nd August, 2017 by a majority of 3:2. Majority Judgement- Rohinon
Nariman J. and U.U. Lalit J.
Marriage in Islam is a contract, and like other contracts, may be under certain circumstances, be
terminated. There was something astonishingly modern about this-no public declaration was a
condition precedent to the validity of a Muslim marriage nor was any religious ceremony deemed
absolutely essential, though they were usually carried out Apparently, before the time of Prophet,
the pagan Arab was absolutely free to repudiate his wife on a mere whim, but after the advent of
Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital
life unfortunate.
In the absence of good reason, no man could justify a divorce. Even Prophet had declared divorce to
be the most disliked of lawful things in the sight of God. As it breaks the marital tie capriciously
and whimsically by a Muslim man which is fundamental to family life. Not only that it has also
serve severe psychological and other repercussions on the children from such marriage. As Triple
Talaq is instant and irrevocable, so it was obvious that no any attempt ever been made for
reconciliation between the husband and wife to save the marital tie. Privy Council in Rashid
Ahmad, such Triple Talaq validate it even if it was not for any reasonable cause, which is no longer
holds well in law after Shamim Ara.
Therefore, it held violative to the fundamental right guaranteed under Article 14 of the Constitution.
The 1937 Act, seeks to recognize and enforce Triple Talaq, was within the meaning of expression
laws in Article 13(1) and it must be struck down to the extent it recognizes and enforces Triple
Talaq as being void. The practice triple talaq was set aside.
2. Concurring Judgement- Kurian Joseph J.
To freely profess, practice and propagate religion of one's choice is a Fundamental Right guaranteed
under the Constitution. Under Article 25 (2) of the Constitution, the State is also granted power to
make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25
(2) states that nothing in this Article shall affect the operation of any existing law or prevent the
State from making any law-(a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice; (b) providing for social welfare
and reform or the throwing open of Hindu religious institutions of a public character to all classes
and Sections of Hindus. Except to the above extent, the freedom of religion under the Constitution
is absolute.
On the statement that triple talaq was an integral part of the religious practice, could not be agreed.
Merely because a practice had continued for long that by itself could not make it valid if it had been
expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat,
the Rule of decision and to conclude anti-Shariat practices enumerated in Section 2 that include
talaq. Therefore, any case after the enactment of 1937 Act, no practice against the Quran was
permitted. Hence, there is not any Constitutional protection to such a practice and thus, the Chief
Justice void the constitutional protection given to triple talaq.
Minority Judgement- CJI J.S. Khehar and Abdul Nazeer J.

Practice of ‘talaq-e-biddat’, had sanction and approval of the religious denomination in their
personal law which they practiced it. The whole purpose of the 1937 Act was to declare Shariat as
the Rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in
Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no
practice against the Quran was permitted. Hence, there is not any Constitutional protection to such a
practice and thus, Chief Justicethe the constitutional protection given to triple talaq.

After scrutinising Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the
limited purpose of the said provision was to negate the overriding effect of usages and customs over
the Muslim ‘personal law’-‘Shariat’. The Shariat Act, neither lays down nor declares the Muslim
‘personal law’-‘Shariat’. Not even, on the questions/subjects covered by the legislation. There was
no room for any doubt, that there was substantial divergence of norms regulating Shias and Sunnis.

The Shariat Act did not crystallise the norms as were to be applicable to Shias and Sunnis, or their
respective schools. What was sought to be done through the Shariat Act, was to preserve Muslim
‘personal law’ – ‘Shariat’, as it existed from time immemorial. The Shariat Act recognizes the
Muslim ‘personal law’ as the ‘rule of decision’ in the same manner as Article 25 recognises the
supremacy and enforceability of ‘personal law’ of all religions. Muslim ‘personal law’-‘Shariat’ as
body of law, was perpetuated by the Shariat Act, and what had become ambiguous (due to
inundations through customs and usages), was clarified and crystalised. Muslim ‘personal
law’‘Shariat’ could not be considered as a State enactment.

This was a case which presents a situation where present Court should exercise its discretion to
issue appropriate directions under Article 142 of the Constitution. Direction granted to Union of
India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. The
contemplated legislation would also take into consideration advances in Muslim ‘personal
law’‘Shariat’, as have been corrected by legislation across the world, even by theocratic Islamic
States.

Why this case is important?

To understand the existing scenario of muslim women due to such social evils practiced under
Muslim Law. How the muslim women humiliated and their rights are curtailed in the name of
religion. The role of SC acting as a protection shield against such social evils by rejecting the
contention that SC has no jurisdiction to interfere in Muslim Personal law since it is inextricably
interwoven with the religion of Islam which is based on Quranic injunction and not a law enacted
by Parliament.
Critical Analysis

In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'- triple
talaq was set aside in this case. The Supreme Court reasoned that the practice of instant divorce was
against gender equality and was also not a major part of the Islamic religion. As a formal gesture
against the practice, many Muslim countries have declared this form of divorce illegal.

Talaq is manifestly arbitrary, marital tie can be broken capriciously and whimsically by a Muslim
man without any attempt at reconciliation so as to save it. Therefore, it violate the fundamental right
contained under Article 14 of the Constitution of India.

The Holy Quran has attributed sanctity and permanence to matrimony and only allowed talaq in
extremely unavoidable situation. If an attempt for reconciliation succeeds, then revocation are the
essential steps before talaq attains finality in Quran’s. In triple talaq, this alternative is closed,
hence, triple talaq is against the tenets of the Holy Quran and consequently violates Shariat.

In this case it was also pointed out, that Muslim women, were placed in a position more vulnerable
than their counterparts, who professed other faiths. The legal position under Articles 25 and 26
extends to protection for rituals and observances, ceremonies and modes of worship which are
essential parts of religion and as to what really constitutes a crucial part of religion or religious
practice has to be decided by the courts by the doctrine or practices of a particular religion came to
be equally firmly laid down. Actually it is also argued that Indian courts, by using the ‘essential
practices’ doctrine, are in fact, creating a uniform understanding of religion and what is
fundamental to it. This is being done by imposing an understanding of public morality - one of the
exceptions to the exercise of the freedom of religion - that is rooted in a human rights discourse.

However, there are several grounds on which this case is violative of the Constitution of India as it
is completely against women. Social democracy means “a way of life which consider equality,
liberty and fraternity as principles of life”. Articles 15(4) and 16(4), intends to eliminate social and
economic inequality to make equal opportunities available in reality. Social and economic justice is
a right inherent for the protection of society. The right to social and economic justice enshrined in
the Preamble and guaranteed in the Fundamental Rights and Directive Principles of the Constitution
under Articles 14, 15, 16, 21, 38, 39 and 46 of the Constitution, is to make the quality of the life of
the poor, deprived and underprivileged section of society, meaningful. The vision of the founding
fathers of the Constitution is to liberate the society from blind and superstitious adherence based on
traditional, ritualistic beliefs found expression in the form of Article 17. Therefore, judicial review
must be exercised with insight into social values to supplement the changing social needs. The
existing social inequalities or imbalances are required to be removed readjusting the social order
through Rule of law.
Conclusion
Having laid out the differences in the three opinions above, we have find that very few points on

which a clear majority position emerges. Even when the judges agree on the outcome, they do so

for many reasons. Justices Nariman and Lalit find ITT to be un-Islamic and unconstitutional. Justice

Joseph does not go into the question of constitutionality but finds IIT to be un-Islamic and hence,

invalid. Thus, by no means can it be concluded that in the Shayara Bano case, the Court has

declared ITT to unconstitutional.

On the issue of the constitutional status of personal law, we found an utterly confusing judgment.

Two judges holding a point that unmodified personal law is beyond the scope of the Fundamental

Rights, but following rather dubious logic, hold at a later point that the entire domain of personal

law is protected as matter of religious freedom, and they affirm Narasu. Two other judges hold

personal law to be subject to the Fundamental Rights, but they do not clearly expressed set aside

Narasu. One judge rejects the proposition that unmodified Muslim personal law can be examined

against Fundamental Rights, rejects that it is shielded by religious freedom, acknowledges the ghost

of Narasu, but avoids the issue entirely. Arguably, Justice Joseph’s approach to the problem shows

that it could have been taken even without a constitutional challenge. But since the petitioners had

brought-up the issue of constitutionality, the judges could have addressed the issue more

thoughtlessly.

In the final analysis, the judgment in Shayara Bano does not replace the legal position of ITT that

exist before, but creates confusion on the constitutional status of personal law and misses a great

opportunity to detailed on the constitutional vision of justice for women from minority religious

groups.