SHAYARA BANO

v.
UNION OF INDIA
(2017) 9 SCC 1

THE TRIPLE TALAQ CASE

THE STORY OF SHAYARA BANO
BACKGROUND OF THE CASE
Shayara Bano was married to Rizwan Ahmed

1.
●

and had two children from this marriage. Hers

was a 15 years long married life.

2.
●
In this span of 15 years, she survived Domestic Violence and
Dowry Harassment in the hands of her husband. She moved
over to her parents place as a result of her harassment

3.
●
Rizwan pronounced Talaq, Talaq, Talaq in the
presence of two witnessed and delivered Talaq
Nama dated 10th December 2015 to Shayara.
Shayara knocking the doors of Justice seeking a
declaration
Approached the
Court through a
writ petition seeking
a declaration

Violates Articles
14, 15, 21 and 25
of the
Constitution.

The Court
chose to
address
ITT, polygamy, and instantaneous
Halala in Muslim
personal law were Triple Talaq
illegal, unconstitutional
The other stake holders involved
Bharatiya
Muslim Mahila
Andolan and
Majlis and
others
• As a consequence, constitutional validity of Triple Talaq was
called into question before a Constitution bench of the Supreme
Court comprising of 5 judges.

Dissenting Majority
 Before moving over to the issues…
• Article 13 of the Constitution
• State of Bombay v. Narasu Appa Mali
• Article 14 and Article 25 of the Constitution
 Article 13

• All laws in force in the territory of India immediately before

the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.
• “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having… the force of law;
• “laws in force” includes laws passed or made by a Legislature
or other competent authority in the territory of India before the
commencement of this Constitution and not previously
repealed….
State of Bombay v. Narasu Appa
Mali
AIR 1952 Bom 84
 ‘Personal Laws as Laws in force’
Justice Gajendragadkar
Justice Chagla

• The unanimous verdict stated personal laws

are immune from constitutional scheme.
 Justice Gajendragadkar
●
laws passed or made by a Legislature
“laws in or other competent authority in the
territory of India before the
force” commencement of this Constitution
and not previously repealed.

The foundational sources of

●

“Persona both the Hindu and the

Mahommedan laws are their
l Laws” respective scriptural texts.
 Therefore….

• Personal Law does not fall

within the expression ‘laws in
force’ in Article 13(1).
 Justice Chagla

Custom and ●
Custom or usage is deviation from
Personal Law personal law and not personal law itself.
have a ●
The difference between custom and
personal law is clear and unambiguous.
difference

But Law Article

●
17 (Abolition of
recognizes untouchability), Article 25 (Freedom
such of Religion) and Article 372 (Power
to Adapt and modify laws).
difference
 Therefore….
• The implication being that the drafters
did not intend to subject personal laws
to Constitutional provisions, because
otherwise it would be ‘unnecessary to
specifically provide for them.’
So, basically….
“Laws in force”

Statutory Personal Laws

Uncodified Scriptural Laws
Also…let us briefly look into

Muslim Personal Law

(Shariat) Application Act,
1937
• Application of Personal law to Muslims.—
Notwithstanding any custom or usage to the contrary,
in all questions (save questions relating to agricultural
land) regarding intestate succession, special property
of females, including personal property inherited or
obtained under contract or gift or any other provision
of Personal Law, marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and
trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious
endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal
Law (Shariat).
COMING BACK TO THE
SHAYARA BANO
MATTER
 The Issues
1. Is Talaq-e-biddat Islamic in
●

nature?

Whether the Muslim Personal Law (Shariat) Act, 1937 confers

2.
●

statutory status to the subjects regulated by it or is it still covered

under “Personal Law” which is not “law” under Article 13 of the
Constitution as per previous the Supreme Court judgments?

3. Is it protected by Article 25 of
●

the Constitution?
Is Talaq-e-biddat Islamic in
nature?
It is not mentioned in the Quran

• It is bad in law and bad in theology.

• Kurian J’s judgment places reliance on
the petitioner’s argument in concluding
that Triple Talaq is unislamic.
• Reliance is made on Shamim Ara case.
 Whether the Muslim Personal
Law (Shariat) Act, 1937 confers
statutory status to the subjects
regulated by it or is it still
covered under “Personal Law”
which is not “law” under Article
13 of the Constitution as per
previous the Supreme Court
judgments?
 Nariman J. Majority Stance

Arbitrary Instantaneous Violative of Article 14

 Nariman J. on the 1937 Act
• The function performed by the 1937 Act was
not only to abrogate the application of
customary law to Muslims.
• It also performed a positive function, in that it
also provided what was the applicable law.
• The entity “Muslim Personal Law” therefore,
was brought into existence by the state in
exercise of its civil authority- i.e. “laws in
force”.
Basically to decode Justice Nariman…
Abrogat
e
customa
ry law of
Muslims

The 1937 Act

is the “law in
force” as per
Art.13

Provides
for what
is the
applicabl
e Law for
Muslims
 Nariman J. on Narasu Appa Mali

• Even un-codified Muslim personal law can be tested for

compliance with the Fundamental Rights.

• The judge contradicts the rationale on which Narasu was based.

• Further, he sets aside an earlier two-judge bench decision of the

Supreme Court that had relied on Narasu.

• But curiously, having rejected Narasu in both substance and

application, he notes that the question of whether Narasu is still
valid law should be examined in a “suitable case”.
 Thus, according to Justice Nariman

• Triple talaq is an “irregular or heretical form

of talaq”…it is considered to be incurring the
wrath of God.

• Thus, the religious position coincided with the

constitutional-reasoning based finding that
ITT was manifestly arbitrary.
 Justice Keher
• Determining the validity of ITT by
referring to the Hadiths, is beyond the
judicial role and expertise.
The middle path of Justice Joseph
Kurien
1. Arbitrariness is the appropriate test for Article 14.
●

●
The 1937 Act cannot be subjected to it.

2.
●
The 1937 Act, leaves the question of interpretation to the
judges as to what the Shariat is on a particular issue.
●
Therefore, what is Quranically wrong cannot be legally right.

3. The Talaq in 1937 Act does not

●

include ITT.
Is it protected by Article 25
of the Constitution?
 Essentiality Test

• The essentiality test

decides whether a
particular practice is an
integral part of a religion
or not.
 Essentiality Test
• Relying upon Sardar • Nariman J., in quoting,
Commissioner of Police v. Acharya
Syedna Taher Saifuddin Jagdishwarananda Avadhuta 2004
Saheb case 1962 AIR 853, (12) SCC 770, states that an
Khehar J., quotes that essential practice is the practice
on which core beliefs of the
whether a practice is
religion are founded; a
essential or not must be cornerstone upon which the
decided from the view of superstructure of the religion is
the members of that built, without which the
fundamental character of the
community. religion would change. It is a
permanent and essential part of
the religion and cannot be
subtracted or added later.
Fundamental Right under Article
25…?? What about that…??
“complete “religion, belief
justice” and conscience”
 The court attempted Harmonious
Construction

●
No single provision of any legislative scheme
Limits to should prevail over other provisions of the
legislative scheme.
Article 142 ●
Therefore Art.142 cannot be interpreted in a
manner to restrict enjoyment of Article 25

By no stretch of imagination can the

“Complet
●

term “complete justice” be

interpreted to include injuncting a
e Justice” Fundamental Right.