Citation - (2017) 9 SCC 1

Judgement dated - 22/08/2017

Bench – Hon’ble Justice Jagdish Singh Khehar, Hon’ble Justice Kurian Joseph, Hon’ble
Justice Rohinton Fali Nariman, Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice S. Abdul
Nazeer
Petitioner/Appellant: Shayara Bano
Defendant/Respondent: Union Of India And Ors. and Ministry Of Women And Child
Development Secretary

REASONS LEADING TO THE CASE

A woman survivor of the grounds like domestic violence and dowry Harassment was divorced
by her husband through Instantaneous triple talaq. She then filed the petition before apex
court stating that this Instantaneous Triple Talaq, Polygamy and Nikah Halala in personal law of
Muslim, are violating Art 14, Art 15, Art 21 and Art 25 of the constitution.

FACTS OF THE CASE

1. Shayara Bano was married to Rizwan Ahmed for 15 years, and according to the claims,
she was subjected to dowry harassment and domestic violence.

2. In 2016, she was divorced through talaq-e-bidat, which initiated the writ petition filed
before the Supreme Court.

3. The petition stated that the practices of Nikah- Halala, triple Talaq and polygamy under
Muslim personal law were unconstitutional, illegal and violated the fundamental rights
guaranteed under Art 14, 15, 21, and 25 of the Indian Constitution.

4. The Union of India and women's rights groups, including the Bhartiya Muslim Mahila
Andolan (BMMA) and the Bebaak Collective, supported Ms Bano's petition to declare
these practices unconstitutional. They even sought the Court to pronounce that the
Fundamental Rights apply to personal law.

5. The All-India Muslim Personal Law Board (AIMPLB) has argued that since Muslim
personal law is not codified and is protected by Article 25 of the Constitution, it is not
subject to constitutional judicial review. Additionally, the Court lacks jurisdiction to
consider a constitutional challenge to Muslim personal law.

6. The Court sought written responses from the Union of India and Shayara Bano, several
organisations working for women's rights, and the All-India Muslim Personal Law Board
(AIMPLB) on the challenges and issues surrounding polygamy, nikah-halala, and talaq-e-
biddat on February 16, 2017.

ISSUES IN THE CASE

1. Whether the practice of talaq-e-bidat, an essential practice of Islam?
 2. And whether this practice of Triple Talaq violates fundamental rights i.e., Articles
14,15,21, and 25 of the Indian constitution?

ARGUMENTS IN THE CASE

PETITIONER’S ARGUMENT

1. Shayara Bano's advocate Mr. Amith Chadha began by arguing that triple talaq is not a
form of divorce recognized by The Muslim Personal Law (Shariat) Application Act, 1937.
He also pointed out that several High Courts and Supreme Court have restricted this
unilateral power of Muslim men to be able to divorce Muslim women and even
criticized the practice of triple talaq as it does not have any Quranic sanction.

2. He urged the court to "strike down the practice of triple talaq as it allows an un-codified
power to Muslim men to divorce, violating Articles 14 and 15 of the Constitution."

3. Next, Mr. Amith Chadha argued that "the practices challenged in this case are not
essential practices of Islam as it is evident from legislations in other Islamic countries,
that have prohibited such practices."

4. Mr. Anand Grover, representing the Bharatiya Muslim Mahila Andolan (BMMA) also
clarified that "Talaq itself is of three types: talaq ahsan and talaq hasan, both of which
are approved and recognized by the Quran and Hadith while the third type that is talaq-
e-bidat, is neither recognized nor approved by the Quran nor the Hadith.

5. Ms. Indira Jaising, Sr. Adv. who was representing the Intervenors, argued that "personal
laws - whether codified or un-codified - regardless of the community, are subject to
Article 13 of the Indian Constitution and therefore void to the extent that they violate
fundamental rights."

6. She also concluded by advancing the general proposition that "any divorce which is
unilateral and without judicial oversight violates Articles 14, 15 and 21 of the Indian
Constitution. Also, the general Islamic concept of marriage among Muslims is admittedly
a contract it cannot be dissolved unilaterally."

7. Mr. Anand Grover, Sr. Adv, started by pointing out that "the AIMPLB is a private body
that isn't representative of the views of all Hanafi Muslims. He asserted that there are
differences in the Hadith texts and read an interpretation of Hadith which prescribed
that triple talaq should be staggered."

RESPONDENT’S ARGUMENT

1. Mr. Kapil Sibal, Sr. Advocate, representing the All India Muslim Personal Law Board
(AIMPL) began by emphasizing that the core underlying issue before the court is that of
patriarchy which pervades every religion and not the issue of triple talaq
2. Mr. Sibal referred to the Constituent Assembly Debates to argue that the definition of
law under Article 13 does not include personal laws. He suggested that the explicit
mention of personal laws in the Concurrent List (List III of the Seventh Schedule) and its
absence in Article 13 demonstrates the Constitution makers' intention to exclude
personal laws.

3. Mr. Sibal then sought to place this case in a historical and social context. He noted that
it is important to protect minority rights in a Hindu majority state. Most jurisdictions
that passed legislation abolishing triple talaq have Muslim majorities. Hence, India must
be sensitive to the Muslim community's minority status before legislation is proposed.

4. Mr. Sibal responded that while the Quran is silent on triple talaq, there is nothing in it
that prohibits triple talaq. Moreover, petitioners' view that the Quran alone is the
source for understanding talaq is incorrect as the Sharia is based on the Quran, Hadith,
and interpretations of scholars.

5. Mr. Sibal concluded arguments by claiming that Muslim women are not discriminated
against by the triple talaq rule and may even benefit from immediate relief from bad
marriages. He proposed four options for a Muslim woman to protect herself from a
discriminatory use of the triple talaq: first, she may register the marriage under the
Special Marriage Act, 1954; second, she can insert conditions into the Nikahnama to
prohibit her husband from exercising a triple talaq; thirdly, she delegates the right to
talaq to herself and finally, insist on the payment of a high Mehr amount to deter the
exercise of triple talaq.

6. He concluded arguments by emphasizing that the Hanafi school is a religious

denomination and that every denomination's right to practice religion is protected
under Article 26 of the Constitution.

7. Mr. Goel argued that the question of assessing the constitutional validity of triple talaq
does not arise as the divorce is between two private individuals and there is no state
action involved.

8. Moreover, since marriage is a private contract under Islamic Law, no State legislation
can change it.

9. Mr. Giri, Sr. Advocate, cited verses from the Quran to argue that marriage and divorce
have sources in religious scriptures and thus are essential matters of religion protected
under Articles 25 and 26 of the Constitution.

JUDGMENT BY THE COURT

The Supreme Court laid down its judgment on August 22, 2017 in a 3:2 majority, holding
the practice of Triple Talaq unconstitutional. The 5-judge bench that heard the
controversial triple talaq case in 2017 was made up of different faith members. The five
judges were from five different communities i.e., Chief Justice JS Khehar (a Sikh), Justices
Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu), and Abdul Nazeer (a
Muslim).

Justice Rohinton Nariman and Uday Lalit held that talaq-e-bidat is regulated by the
Muslim personal law (Shariat) application 8, 1937. They held the practice is
unconstitutional because it is arbitrary. Justice Kurian Joseph, on the other hand, noted
that triple talaq is against the Quran, hence it lacks legal sanction. He wrote, "what is
held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology
is bad in law as well". They held that this practice of Instantaneous Triple Talaq is against
both theologies as well as law and just because it is followed by a large number of
people, it cannot be validated.

Notably, the dissenting minority opinion of chief justice Khehar and Justice Abdul Nazeer
held that such a practice is an essential religious element of Islam. They justified this
stance on the basis that this practice of talaq-e-biddat is followed around by a large
number of people. So, since this practice has the sanction of religious denominations
and is also followed by an overwhelming majority of the Muslim population, it is to be
declared constitutional as well as an essential religious practice.

It is mentioned under Article 25 of the Constitution that the state cannot take away any
essential religious practice of a person. Hence, if a practice is arbitrary and not an
essential religious practice, it will be categorized under the exception laid down under
Article 25. On that account, the whole issue was whether or not the practice of Talaq-e-
biddat, is an essential religious practice of Islam.

Justice Khehar believed that as far as the exceptions that are mentioned in Article 25(1)
of the Constitution, this practice was not violative of any of these exceptions as Shariat
or Muslim Personal law is not based on any state legislative action.

CONCLUSION

In the above case that is Shayara Bano v. Union of India, the Apex Court has held the
practice of triple talaq (talaq-e-biddat), unconstitutional by a 3:2 majority. And recently,
that is on 30th July 2019, the parliament of India, passed the Muslim Women
(Protection of Rights on Marriage) Bill, 2019, that declared the practice of triple talaq as
illegal, unconstitutional, and also made it a punishable act from 1st August 2019. The
courts have finally brought justice to those women who have been a victim of Triple
Talaq. The court has ensured that the ideas of equality especially gender equality are
not a mere theoretical ideology.