Constitution

Shayara Bano v. Union of India and Ors

AIR 2017 9 SCC 1 (SC)

Basanta Chhatar
Bba llb (2022-27)
22UG105006

Ashmit Rungta
Bba llb (2022-27)
22UG105005
 Shayara Bano v. Union of India and Ors
AIR 2017 9 SCC 1 (SC)
JUDGE NAME

 Justice Jagdish Singh Khehar

 Justice S. Abdul Nazeer
 Justice Rohinton Fali Nariman
 Justice Uday Lalit
 Justice K.M. Joseph.

BACKGRROUND OF THE CASE

Muslim Law, also known as Mohammedan Law, is one of the personal laws in India,
alongside Hindu Law. It governs both Sunni and Shia sects of Muslims. However, because it
is not codified, it is open to various interpretations, making it difficult to address the real-
world problems it poses. One such issue is the unfair treatment of women, particularly in the
context of "triple talaq" or "talaq-e-biddat," a form of instant divorce where a Muslim man
can divorce his wife by saying "talaq" three times in one sitting. Unlike other forms of
divorce like talaq-e-Hasan and talaq-e-Ahsan, which allow for reconciliation, triple talaq
cannot be revoked once pronounced.

If a husband regrets his decision and wishes to remarry his former wife, he must follow the
Nikah Halala procedure. This involves the woman marrying another man, then the second
husband voluntarily divorcing her, followed by an iddat period before she can remarry her
former husband. This practice imposes additional hardship on women.

The primary victims of these practices are women, whose lives are dramatically disrupted in
a matter of seconds. This controversial custom has left Muslim women vulnerable to abuse,
adversely affecting their social and economic status, particularly since many are not
financially independent. Husbands have the power to initiate divorce whenever they please,
while women have little say in the matter. Shayara Bano was one such victim of instant talaq
who chose to fight back, leading to historic changes not only in Muslim personal law but also
in how the Indian Constitution relates to personal laws.
FACTS OF THE CASES

On August 22nd, 2017, a 5-judge bench of the Supreme Court rendered a landmark verdict
with a 3:2 majority, declaring the practice of instant triple talaq unconstitutional.

The case revolved around Shayara Bano, who had been married to Rizwan Ahmed for 15
years. In 2016, she was unilaterally divorced through the practice of instant triple talaq, also
known as talaq-e-biddat. Shayara Bano filed a writ petition before the Supreme Court,
arguing that this practice, along with polygamy (having multiple wives) and Nikah Halala (a
process where a divorced woman must marry another man and be divorced again to remarry
her former husband), violated her fundamental rights guaranteed under Articles 14 (equality
before law), 15 (non-discrimination), 21 (right to life with dignity), and 25 (right to freedom
of conscience and religion) of the Indian Constitution.

Support for Shayara Bano's plea came from the Union of India and women's rights
organizations like the Bebaak Collective and the Bhartiya Muslim Mahila Andolan (BMMA).
They urged the court to declare that personal laws should be subject to Fundamental Rights.

On the other side, the All-India Muslim Personal Law Board (AIMPLB) argued that
uncodified Muslim personal law was not subject to constitutional judicial review. They
contended that these practices were essential to the Islamic religion and were protected under
Article 25 of the Constitution.

In response to these arguments, on February 16th, 2017, the Supreme Court asked Shayara
Bano, the Union of India, women's rights organizations, and AIMPLB to submit written
submissions regarding the issues of talaq-e-bidat, nikah-halala, and polygamy.

Nikah Halala, also known as tahleel marriage, involves a woman who has been divorced
through triple talaq marrying another man, consummating the marriage, and then getting
divorced again to remarry her former husband.

While the Union of India and women's rights organizations supported Shayara Bano's plea,
AIMPLB maintained that these practices were protected under Article 25 and were not
subject to constitutional judicial review as per Article 13(2).

On March 30th, 2017, the Supreme Court formed a 5-judge constitutional bench and accepted
Shayara Bano's petition. Then, on August 22nd, 2017, by a majority of 3:2, the constitutional
bench ruled that the practice of instant triple talaq was unconstitutional.
ISSUES OF THE CASE

 Whether the practice of talaq-e-biddat specifically mentioning Instantaneous Triple Talaq

an essential practice of Islam?
 Whether the practice of Instantaneous triple talaq violate any fundamental rights of the
constitution?
 Whether Triple Talaq protected under Act 25 of the constitution?
 Does Shariat Act give triple talaq Applicability?

ARGUMENT FOR BOTH SIDES

Arguments from the Petitioner's Side:

Amit Chadha, representing the petitioner, contended that triple talaq was not officially
recognized in the Shariat Application Act of 1937, nor was it encouraged by the Prophet.
This form of talaq had developed as a custom and a misinterpretation, lacking Quranic
validation. He cited various cases that had raised questions about this form of talaq, including
the Shamim Ara v. State of Uttar Pradesh (2002) case, where the Court had provided
guidelines for valid talaq. Mr. Chadha urged the Court to prohibit this form of talaq on the
grounds that it violated Articles 14 (equality before law) and 15 (non-discrimination). He
argued that banning it would ensure that the Dissolution of Muslim Marriage Act, 1939
applied uniformly to the entire community, regardless of gender.

Arguments from the Respondent's Side:

The respondents, represented by Kapil Sibal, presented their case by asserting that the Shariat
Act did not codify Muslim personal law but instead laid down rules of decision for cases
involving customs or practices to the contrary. He emphasized that, according to the
Constitution, marriage in Muslim law was a private contract and could not be questioned by
any legislation. Mr. Sibal pointed out that the Constitution's definition of law did not
encompass personal laws.

Furthermore, he argued that under Article 25 of the Constitution, which empowers the
parliament to create laws related to social reforms concerning secular activities, the court
could only assess the validity of such laws if the parliament had indeed enacted legislation on
the issue. Regarding the discrimination faced by women, Mr. Sibal contended that women
had the option to register their marriages, restrict the husband's right to divorce through talaq-
e-biddat in the Nikahnama (marriage contract), demand a higher dower or Mehr, and so forth.
JUDGEMENT

The Supreme Court delivered its verdict on August 22, 2017, with a 3:2 majority, deeming
the practice of Triple Talaq unconstitutional. Notably, the five-judge bench presiding over the
contentious triple talaq case represented diverse faiths: Chief Justice JS Khehar (Sikh),
Justices Kurian Joseph (Christian), RF Nariman (Parsi), UU Lalit (Hindu), and Abdul Nazeer
(Muslim).

Justice Rohinton Nariman and Uday Lalit held that talaq-e-bidat, governed by the Muslim
Personal Law (Shariat) Application Act of 1937, was deemed unconstitutional due to its
arbitrary nature. Justice Kurian Joseph, conversely, pointed out that triple talaq was not in
accordance with the Quran and, therefore, lacked legal sanction. He argued that something
considered wrong in the Holy Quran could not be deemed right under Shariat law, asserting
that this practice contradicted both religious theology and legal principles. They emphasized
that the prevalence of this practice among a large number of people did not justify its
validation.

In contrast, Chief Justice Khehar and Justice Abdul Nazeer, in their minority opinion, argued
that such a practice constituted an essential religious element of Islam. They justified this
stance by highlighting its widespread adoption among the Muslim population and its
endorsement by religious denominations. According to Article 25 of the Constitution, the
state cannot interfere with an individual's essential religious practices. Hence, if a practice is
arbitrary and not considered an essential religious practice, it falls within the exceptions
specified in Article 25.

Justice Khehar believed that, with regard to the exceptions outlined in Article 25(1) of the
Constitution, the practice of Talaq-e-biddat did not violate any of these exceptions since
Shariat or Muslim Personal Law was not based on any legislative action by the state.
CASE ANALYSIS

While the Supreme Court's decision to declare triple talaq unconstitutional by a 3:2 majority
was a significant milestone, there remains some ambiguity in the reasoning provided by the
judges. Justices Nariman, Lalit, and Joseph deemed triple talaq as unIslamic and
unconstitutional. The current legal landscape is clear on this matter, with the practice being
abolished by the Indian Constitution, and legislation enacted by the government to address
this issue.

The landmark ruling in the Shayara Bano case undeniably represents a step towards
achieving equality and lays the groundwork for future amendments in personal laws and
social reforms. The decision also handled the minority viewpoint in a constructive manner,
aligning with principles of secularism.

While the primary focus may not have been on gender justice, this decision is expected to
have significant positive implications for the advancement of women's rights and gender
equality in India. It is anticipated that this judgment will be objectively viewed and contribute
to a better and more secure life for Muslim women, in accordance with the laws of the land.

Although the decision lacked explicit clarity on issues of gender equity and inequality within
personal laws and how they should be addressed, it was indeed a positive step forward. It
ensures that husbands can no longer arbitrarily dissolve their marriages at their own
discretion. The court emphasized that equality, especially gender equality, is not merely a
theoretical concept. However, there remains concern about the viewpoint of the minority
bench among the nation's citizens