The Triple Talaq judgement- Shayara Bano vs Union of India and others (2017) 9 SCC 1

Author- Tejal Agre
College-GH. Raisoni Law School
  • Case NameShayara Bano vs Union of India
  • CourtThe Supreme Court of India Original Civil Jurisdiction
  • Citation(2017) 9 SCC 1
  • Case no. – Writ Petition (C) No. 118 of 2016
  • PetitionerShayara Bano
  • RespondentUnion of India and others
  • Date of Judgement: 2017.08.23
  • BenchJagdish Singh Khehar(CJ), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, S. Abdul Nazeer JJ.

Keywords: Shayara Bano vs Union of India, Shayara Bano vs Union of India judgement, triple talaq case judgement, triple talaq act 2019, Shayara Bano vs Union of India case.

IntroductionShayara Bano vs Union of India:


There are basically three forms of divorce in the Muslim Act Shariat, 1937. Talaq e Hasan , Triple Talaq is also known as Talaq-e-biddat is a form of instant divorce used by the Muslim community. The man can divorce his wife by uttering the words which consist of 3 pronouncements i.e., talaq-talaq-talaq made during a single go.


A single pronouncement made during the tuhr clearly indicating an intention irrevocably to dissolve the marriage. It can be pronounced in person or through calls, WhatsApp, Email, or any media.
On 22 August 2017, The Supreme Court of India declared it unconstitutional. The parliament of India passed the bill on July 30, 2019, also known as the Muslim Women (Protection of Rights on Marriage) Bill, 2019.

The fact of the case:

  • In this case, the petitioner Shayara Bano, a 35-year Muslim woman, has filed a Writ Petition in the Supreme court of India for the divorce pronounced by her husband Rizwan Ahmad in the year 2015.
  • Shayara Bano contented that divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) and hereafter the talaq-e-biddat pronounced by her husband should be declared as void ab initio.
  • She has filed a Writ Petition in the Supreme court of India and highlighted 3 issues Talaq-e-biddat, Polygamy, Nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) to be declared unconstitutional and alleged that it violates the fundamental rights of Muslim Women’s such as Article 14, 15,21 and 25 of the Indian Constitution.

Issues:

  •  Whether the Triple Talaq or Talaq- e biddat is an essesntial Religious Practise of Islam?
  • Whether the Practice of Triple Talaq violates the Fundamental Rights?

Rules:

ARTICLE 14- Equality before law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

ARTICLE 15
Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction or condition with regard to.

(a) Access to shops, public restaurants, hotels, and palaces of public entertainment; or

(b) The uses of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.


ARTICLE 21- Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to the procedure established by law.

ARTICLE 25
Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law.

(a) Regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice.

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.


Arguments of the Parties:


Arguments by the Petitioner

  • The petitioner contended that talaq –e- biddat was not sacrosanct to the profession of the Muslim religion and has all along treated irregular, patriarchal, and even sinful.
  • The triple talaq is pronounced in a single go by the husband and female spouse had no say in the matter, wherein it vests arbitrary right in the husband, and as such, violates the equality clause enshrined in Article 14 of the Constitution.
  • Talaq-e-biddat, a unilateral form of divorce postulates the discrimination and inequality between men and women, hence violates the fundament right under article 15 of the Constitution.
  • It was also contended that the alliance amongst Muslims, had resulted in severe gender discrimination and inequality, which amounted to violating their human rights and dignity of women under Article 21 and Article 25 of the Constitution.

Arguments by the Respondents-

  • It was argued that Muslim Personal laws are subjected to religion and is a cultural issue and Supreme Court cannot intervene as and cannot be challenged as Personal Laws are not subject to challenge as per article 13.
  • Article 25, that protects the personal laws, and hence the court has no right to declare it unconstitutional.
  • It was assessed that no such laws have been made by the parliament, hence court cannot challenge its validity.

Shayara Bano vs Union of India Judgement:

Several arguments and contentions were brought up by the respondents and petitioners in this triple talaq case judgement. The five-judge bench decides the matter.
The court declared the triple talaq as unconstitutional by a split verdict in the ratio of 3:2. It was held by Justice Khehar and Justice Abdul Nazeer that talaq –e- biddat is a personal law belonging to Islamic religion which has been practiced at least 1400 years ago and triple talaq has to be considered integral to religious denomination and has the protection under Article 25.


However, Justice Kurian noted that triple talaq is against the Quran and declared it unconstitutional.
Justice Uday Lalit and Justice Nariman held that is violative of fundamental right and so is unconstitutional.
The majority judgment held it unconstitutional. Parliament of India declared the practice of triple talaq as illegal, unconstitutional, and criminalised.

Precedents:

[Maneka Gandhi v. Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248]
In this case, it was stated that the law must be right, just and fair, and not arbitrary, fanciful, or oppressive. Otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be violative of Article 14.


[Shamim Ara v. the State of U.P., (2002) 7 SCC 518,]
It was stated by the Division Bench that the correct law of talaq, as ordained by the Holy Quran, is: (i) that talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of a reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, talaq may be affected.

Analysis:

In our society, women have always faced challenges and were dominated and humiliated in every aspect. This verdict on Shayara Bano vs Union of India case is not about religion moreover it about women and their equality and security in society. Muslim women were living in a perpetual state of fear and uncertainty that no matter what time their husbands would pronounce this form of divorce. Here is a marital relationship, a marriage can end according to the whims of men. Many women have been abandoned by their husbands just by the pronouncement of divorce in one go.


Hence, holding triple talaq unconstitutional was the step taken towards gender equality by the court of law and the government.  This landmark judgement has not only brought gender equality but also progression in a matrimonial relationship. 
This historic judgement spells relief, freedom, joy for the women as their struggle ends against the social evil.

Conclusion:

This historic verdict and parliamentary bill on ITT was much required. The constitution of India guarantees us certain fundamental rights irrespective of our caste, gender, religion. In this case of Triple Talaq, the majority started its judgment by the phrase “what is bad in theology cannot be good in law”. The majority bench held that it against both law and theology. It was discriminatory and violative against the fundamental right under Article 14, 15, and 21.


Every religion has the right to follow their own practices under Article 25 but such practices should be fundamental to the profession and propagation of the religion. In India this was only practiced by the Hanafi School hence cannot be said as an essential practice.
Even in Hinduism, the Sati system was abolished.


Triple Talaq was also banned in many Islamic nations earlier, if it was considered as an essential practice in Islam they would not have banned it.  
After considering all the valid points the major bench declared it unconstitutional.
The court made sure that women enjoy the same right and their rights are being protected as any other gender and religion the society.

Reference:

(2017) 9 SCC 1

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