CASE COMMENT : SHARAYA BANO V.

UNION OF INDIA

COURT : SUPREME COURT OF INDIA

CITATION : AIR 2017 9 SCC 1 ( SC )

DATE OF JUDGEMENT : 22 AUGUST 2017

BENCH : C.J. JAGDISH KEHR , JUSTICE. ABDUL NAZIR ,

JUSTICE ROHINTON NARIMAN , JUSTICE U. U. LALIT , JUSTICE
K.M. JOSEPH

PETITIONER : SHARAYA BANO

RESPONDENT : UNION OF INDIA , MOHD. RIZWAN AHMAD ,

MINISTRY OF LAW & JUSTICE , MINISTRY OF WOMEN & CHILD
DEVELOPMENT , ALL INDIA MUSLIM PERSONAL LAW BOARD .

INTRODUCTION

This case is also called the Triple Talaq case . In this case The Supreme Court of India
decided the constitutional validity of the practice of Triple Talaq . Triple Talaq means - when
a muslim man can get divorce to his wife at any time by uttering the word of Talaq at the
three pronouncement . But after technological advancement then this concept was misused ,
where a husband can give Talaq by Whatsapp messages or any other forms . In most of
Islamic countries , the practice of Triple Talaq is illegal and punishable but in India before
this case there were no laws and punishment for the prevention of Triple Talaq .

BACKGROUND

Petitioner Shayara Bano a woman of survivor like domestic violence & dowry harassment
was divorced by her husband through Triple Talaq . She file the petition before Supreme
Court of India stating that this practice Triple Talaq , Halala , Polygamy violating
fundamental rights such as Article 14 , Article 15 , Article 21 , Article 25 of the constitution
of India . After that Triple Talaq went without legal validity and was held as unconstitutional.
.

LAWS & PROVISIONS INVOLVED

Article 14 , Article 15 , Article 21 , Article 25 of the Constitution of India .

FACTS OF THE CASE

In this case Petitioner Sharaya Bano was married to Mohd Rizwan Ahmad for 15 years but
after 15 years of marriage she was divorced by her husband through Talaq e Bidat or Triple
Talaq in the year of 2016 . Then she filed a writ petition under Article 32 in the Supreme
Court of India that these Practice Triple Talaq , Halala , Polygamy are violating
fundamental rights Article 14 , Article 15 , Article 21 , Article 25 of the Constitution of India
so these should be held as an unconstitutional .

ISSUES RAISED

1. Whether the Practice of Triple Talaq essential Practice of Islam ?

2. Whether the Practice of Triple Talaq violating fundamental rights of the Muslim
women ?
3. Whether the Practice of Triple Talaq is protected under Article 25 of the Indian
constitution ?
 4. Does the Quran recognise Triple Talaq ?

CONTENTIONS

ARGUMENT FROM PETITIONER SIDE

The counsel of Petitioner argued that Triple Talaq is not recognised in Sharia law . Talaq in
muslim law need that there must be reasonable cause and time for reconciliation between the
husband and wife . It should be struck down because it violates Article 14 , and Article 15
that is against the right to equality & gender equality .
Counsel Mr Salman Khurshid also argued from the Petitioner side that Triple Talaq has no
validity in Quran because in Quran it is clearly mentioned that the pronouncement of each
Talaq should be wait for 3 month that is iddat period for reconciliation . And after this period
if there is no understanding between husband and wife then they can get divorce .

ARGUMENT FROM RESPONDENT SIDE

The counsel of the Respondent argued that marriage in muslim is a private contract so it is
not the subject matter of Judicial Review and also not come in the ambit of law under Article
13 . And Article 25 ( 2 ) COI gives freedom of religious Practice .

RATIONALE

● There were distinct reasoning expressed by the Honorable Bench . Like this ,
CJI Jagdish kehr & Justice Abdul Nazir opined that Triple Talaq comes under the
essential religious practice of Islam under Article 25 of the Indian constitution . Every
citizen has the right to Protect their faith . It is the matter of faith not the matter of logic .
 ● Justice ROHINTON NARIMAN & Justice U.U. LALIT opined that all the laws
whether Pre constitutional or post constitutional must be as per the fundamental
rights. But Triple Talaq violate Article 14 & 15 because of it discriminate muslim
women .
● Justice JOSEPH KURIAN said that this Practice Triple Talaq is arbitrary and not
the essential Practice of Islam .
● So finally the majority of 3:2 declared Triple Talaq as unconstitutional .
● The Supreme Court of India directed Parliament to make law for the prevention of
Triple Talaq .

CONCLUSION

Finally after the Direction of The Supreme Court of India , Parliament enacted Muslim
women ( Protection of Rights On Marriage ) Act 2019 . After this law Triple Talaq
becomes a cognizable offence which is punishable upto 3 years and fine also . Triple Talaq is
a very heinous act in muslim community and it destroyed many woman's life's . The
parliament made law but implemented effectively when muslim womes comes forward for
her rights . So muslim women must be contributed for effective implement of this law . India
progresses when all the citizens progress irrespective of any religion or gender . And I think
this case was one step for muslim women empowerment . It is definitely a move towards
equality and has given a backbone to how future personal law and social amendments need to
take place . It is hoped that this verdict and law will be taken in the bright light and will help
muslim women to live a better and more secure life as guaranteed by the law of the land .

REFERENCE

● https://www.scobserver.in
● https://www.hindustantimes.com

Case commentary by ,
SHWETA TIWARI