SHAYARA BANO

VERSUS
UNION OF INDIA AND OTHERS

AIR 2017 9 SCC 1 (SC)

RIGHT TO LIFE WITH DIGNITY

ABSTRACT
This narrative is the case summary of the judgment pronounced by the Supreme Court
in Shayara Banu v Union of India & Ors. This judgement led to the ban of the Muslim
practice of Triple Talaq, which is a process of divorce under the Sharia Law, where a
Muslim man can instantly divorce his wife by pronouncing the word "Talaq" three
times, without any state intervention. The means of communication might be in any
form i.e. written, oral, or maybe electronic, which further enhanced a Muslim
woman's vulnerability during this sort of unilateral and arbitrary divorce. The bench of
the Supreme Court consisting of 5 members, and the majority (3:2) of the bench of
this case provided astute and justified reasoning after scrutinizing the case from
various dimensions, and called this practice unconstitutional, and this further led to the
abolition of the practice of “Triple Talaq” in India. This case historically is also
known as the Triple Talaq Case. By this judgement, the Apex court has ensured that
the ideas of equality, especially gender equality are not mere theoretical ideologies.
The judgement is a landmark case in the Indian women's movement's agitation for
more rights under religion based personal laws.

1. PRIMARY DETAILS OF THE CASE

Case No. : Writ Petition (C) No. 118 of 2016

Jurisdiction : Supreme Court of India

Case Decided On : August 22nd, 2017

Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice

Judges :
Rohinton Fali Nariman, Justice Uday Lalit, Justice K. M. Joseph

Legal Provisions Article 14, Article 15, Article 21, Article 25 of the Indian
:
Involved Constitution and Muslim Personal Law (Shariat) Act 1937

Case Summary Anupa Kharabe

:
Prepared By ILS Law College, Pune
2. BRIEF FACTS OF THE CASE

The petitioner, Shayara Bano, was married for 15 years with two children, before her
husband Rizwan Ahmed granted her a divorce using the Islamic tradition of Talaq-e-
Biddat (triple talaq), which allows a Muslim husband to divorce his Muslim wife
without her agreement. Outraged by this, she filed a writ petition in the Supreme
Court asking the court to declare practices like polygamy, nikah-halala, and Talaq-e-
Biddat unconstitutional. The petition stated a declaration that "the practices of Instant
Triple Talaq, polygamy and Nikah Halala in Muslim personal law were illegal,
unconstitutional, and in violation of several fundamental rights i.e., 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.
Muslim women's groups - the Bharatiya Muslim Mahila Andolan and Bebak
Collective - intervened in the matter to support the petitioners. A key player defending
the practice of triple talaq was the All-India Muslim Personal Law Board (AIMPLB).
The court directed the registration of a public interest litigation (PIL) case, entitled In
Re: Muslim Women’s Quest for Equality vs Jamiat Ulma-I-Hind.
Additionally, the Supreme Court asked the petitioner, Union of India, other women's
rights organizations, and All India Muslim Personal Law Board (AIMPLB) for written
responses to the arguments made regarding polygamy, nikah-halala, and Talaq-e-
Biddat. Women's rights organizations such as Beebak Collective and Bhartiya Muslim
Mahila Andolan (BMMA) back the Union of India in its position that these practices
are unlawful.
The Union of India as well as the women's rights organizations like the Bebaak
Collective and the Bhartiya Muslim Mahila Andolan (BMMA) also supported Ms.
Bano's plea that these practices should be held unconstitutional. They even urged the
court to declare that personal law was subject to the Fundamental Rights.
The All-India Muslim Personal Law Board (AIMPLB) has argued that uncodified
Muslim personal law is not subject to constitutional judicial review and that the Court
did not have jurisdiction to entertain a constitutional challenge to Muslim personal law
as these are essential practices of the Islamic religion and are protected under Article
25 of the Constitution.
On 16th February 2017, Shayara Bano, the Union of India, various women's rights
bodies, and the All-India Muslim Personal Law Board (AIMPLB) were asked by the
court to introduce written submissions on the problems and issues of talaq-e- bidat,
nikah-halala, and polygamy,
3. ISSUES INVOLVED IN THE CASE

I. Does the practice of triple talaq violate any basic rights and is there any
constitutional support for it?
II. Does the practice of Triple Talaq violates fundamental rights i.e., Articles 14,15,21,
and 25 of the Indian constitution?
III. What is the function of Sharia law in this context and how does it apply?
IV. Whether the practice of Triple Talaq is an essential religious practice of Islam?

4. ARGUMENTS OF THE PARTIES

Appellant
Shayara Bano's attorneys, Mr. Amit Chanda and Mr. Salman Khurshid presented
arguments in front of the court regarding Muslim personal law, arguing that the
practice of triple talaq is not recognized by Muslim personal law and is not subject to
any punishment in the Quran. They pointed out three major issues and urged the
bench to take them seriously.
1. Why did the couple divorce?
2. Were any efforts made to find common ground before the divorce?
3. Given that the practice of triple talaq breaches articles 14, 15, and 16 of the
constitution, what is its constitutional validity?
They 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. Mr.
Amit 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. 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. 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. 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. 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.
Respondent
In front of the court, Mr. Mukul Rohatgi, Mr. Kapil Sibal, and Mr. Manoj Goel made
the following key arguments on behalf of Rizwan Ahmad and others:
1. Does judicial scrutiny of personal legislation have any legal standing?
2. The court can only determine legality where the legislature has changed the secular
activities described in article 25(2), which refers to the freedom to practice one's faith.
3. It was also noted that triple talaq is not subject to article 15 since the woman can
seek a delegation of the talaq right and a larger Mehar payment, and she can also seek
the protection of the Special Marriage Act of 1954.
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. He 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. 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. He 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.
In response to a query regarding the judiciary's participation under judicial review
under article 13, CJ Nariman stated that the 1937 Shariat Act includes the state,
meaning that when a conflict between constitutional validity and personal law arises,
the court may step in to prevent the two from encroaching upon one another.

5. LEGAL ASPECTS INVOLVED IN THE CASE

The following Articles of the Indian Constitution were discussed in this case:
1. Article 14: This Article states that “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India”.
It requires that all the rights and freedoms set out in the Act must be protected and
applied without discrimination.
2. Article 15: This Article of the Constitution of India forbids discrimination on
grounds only of religion, race, caste, gender, or place of birth. While prohibiting
discrimination based on prejudice, the Article is also the central issue in a large body
of judicial decisions, public debate, and legislation revolving around affirmative
action, reservations, and quotas.

3. Article 21: This Article provides for protection of Life and Personal Liberty It states
that no person shall be deprived of his life or personal liberty except according to
procedure established by law. This fundamental right is available to every person,
citizens and foreigners alike.

4. Article 25: This Article provides for freedom of conscience and free profession,
practice and propagation of religion. It guarantees the freedom of conscience, the
freedom to profess, practice and propagate religion to all citizens.

6. JUDGMENT IN BRIEF

The constitutionality of triple talaq was tested by the court in different steps. The first
question to answer was whether triple talaq had been codified into statutory law by the
Muslim Personal Law (Shariat) Application Act, 1937. If this were the case, it would
be subject to fundamental rights scrutiny. If it were not the case, the following
question would be whether triple talaq was part of uncodified personal law and
whether as such it could be tested against the constitution. The first question was
decided in different ways by the different judges. Justices Nariman and Lalit argued
that the 1937 Act did indeed codify triple talaq under statutory law. They held that "all
forms of Talaq recognized and enforced by Muslim personal law are recognized and
enforced by the 1937 Act. This would necessarily include Triple Talaq". As a pre-
constitutional law, the 1937 Act would fall within the expression "laws in force" and
would be "hit by Article 13(1) if found to be inconsistent with the provisions in Part
III of the Constitution”.
Justices Joseph, Khehar and Nazeer disagreed with this opinion. question in the
negative, while Justices Khehar and Nazeer answered it in the affirmative. Justice
Joseph arrived at his opinion through an engagement with the Quran and Islamic legal
scholarship. The Quran, in his understanding, permits talaq only when there has been
a previous attempt at reconciliation. However, since in the case of triple talaq,
reconciliation is not possible, the practice must be held to be "against the basic tenets
of the Holy Quran and consequently, it violates Shariat”.
Justices Khehar and Nazeer, on the other hand, regarded triple talaq as a part of
uncodified Muslim personal law (for Sunni Muslims belonging to the Hanafi school)
(para 145) and consequently had to answer whether the same could be tested against
the constitution by the court. The two justices answered this question in the negative.
This was because, in their opinion, the personal laws of any religious community were
"protected from invasion and breach, except as provided by and under Article 25".
This interpretation in particular has been criticised, as it regards a law rather than an
individual as being protected under Article 25.35 The justices did not see a reason to
engage with the relationship between Articles 25 vis-à-vis Articles 14, 15 and 21 as
"other provisions of this part", which the freedom of religion is "subject to" (Article
25(1)), as they held that these rights were only applicable to State action against
individuals. They concluded that the court "cannot nullify and declare as unacceptable
in law, what the constitution decrees us, not only to protect, but also to enforce.
Article 25 obliges all Constitutional Courts to protect 'personal laws' and not to find
fault therewith. Interference in matters of 'personal law' is clearly beyond judicial
examination". The judges "direct, the Union of India to consider appropriate
legislation, particularly with reference to 'talaq-e-biddat’”.
The judges engaged with the core issue of the case: the question of whether the 1937
Act, insofar as it seeks to enforce triple talaq, was a violation of any constitutional
provision, in this case Article 14. With extensive reference to the Supreme Court's
jurisprudence, the judges argued that "legislation can be struck down on the ground
that it is arbitrary and, therefore, violative of Article 14 of the Constitution". This "test
of manifest arbitrariness" was then applied to the case at hand. Since triple talaq was
valid without any "reasonable cause" and did not allow for "any attempt at
reconciliation between the husband and wife", the judges concluded that: "this form of
Talaq is manifestly arbitrary in the sense that the marital tie can be broken
capriciously and whimsically by a Muslim man without any attempt at reconciliation
so as to save it. This form of talaq must, therefore, be held to be violative of the
fundamental right contained under Article 14 of the Constitution of India. In our
opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple
Talaq, is within the meaning of the expression 'laws in force' in Article 13(1) and must
be struck down as being void to the extent that it recognizes and enforces Triple
Talaq”.
Overall, though via a different argumentation, Justices Nariman and Lalit thereby
came to the same conclusion as Justice Kurian Joseph and by a majority of 3:2 the
practice of triple talaq was set aside.

7. COMMENTARY

The landmark decision in Shayara Bano case is unquestionably a step toward equality,
and it has provided a foundation for future personal law and social amendments. This
decision in Shayara Bano v UOI also dealt with the minority in a very viable manner,
which is a step toward secularism. While the decision was a step in the right direction,
it did not go as far as it could have gone, had gender equality been taken seriously.
Despite long elaborations on whether triple talaq was "protected" by Article 25, the
court did not position itself clearly on the relationship between gender equality
(Article 14 and 15) and religious freedom (Article 25). It also refrained from
expressively overruling Narasu Appa Mali. 41 And since the court only set aside one
specific form of talaq, this means that the other forms - talaq-e-ahsan and talaq-e-
hasan - remain in place and Muslim men retain their right to divorce their wives by
pronouncing talaq over a period of a few months. But these other forms of talaq do not
fulfil the standards of gender equality either, as Muslim husbands are granted a
unilateral right to divorce their wives, which Muslim women do not enjoy in the same
manner. Thus, the decision is limited insofar as it constrains itself to a small aspect of
law and does not actually set a precedent in terms of generally applicable standards for
further engagements with discriminatory personal law provisions.

8. IMPORTANT CASE REFERRED

 Ishrat Jahan v Union of India WP-23264/2018

 Mohd Ahmed Khan v Shah Bano Begum AIR 1985 SC 3 844
 Kesavananda Bharati v. State of Kerala AIR 1973 SC 4 225
 Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789
 Nazeer v. Shameema WP(C) No. 37436 of 2003
 Shamim Ara vs State of U.P. & Anr. AIR 2002 7 SCC 518
 Masoor Ahmed v. State (NCT of Delhi) 2008 (103) DRJ 137
 Jiauddin Ahmed v. Anwara Begum (1981)1 GLR 358
 Must. Rukia Khatun v. Abdul Khalique Laskar
 Rashid Ahmad v. Anisa Khatun (1932)34 BOMLR 475