Shayara Bano vs. Union of India

INTRODUCTION

Triple Talaq is an instant divorce procedure under Shariat Law practiced by Muslim men in India. It allows a Muslim husband to divorce his wife legally by saying ‘Talaq, talaq, talaq’ three times. It can be said orally, in writing, or through electronic means such as email or SMS. This form of divorce is known as talaq-e-biddat. Wives cannot divorce their husbands using triple talaq under this law. Under the Muslim Personal Law (Shariat) Application Act 1937, women must petition a court to divorce their husbands. This law does not require the husband to give any reason for the divorce.

BACKGROUND

Triple Talaq is a 1400-year-old Sunni Muslim practice since the period of caliph Umar. This instant divorce was mostly witnessed in Muslim communities by Hanafi School of Islamic Law adherents. The Muslim Personal Law Act of 1937 authorized the process of Triple Talaq to give a woman the right to divorce. The Muslim Personal Law (Shariat) Application Act, 1937 (also known as the “Muslim Personal Law”) governs Muslim family affairs in India. It was one of the first acts passed after the Government of India Act 1935 went into effect.

FACTS OF THE CASE

• Shayara Bano and Rizwan Ahmed were married for 15 years.
• She was a victim of harassment and domestic violence.
• She was divorced unilaterally in 2016 through instantaneous triple talaq.
• She then filed a writ petition before the Supreme Court.

JUDGEMENT

On August 22, 2017, the Supreme Court issued a 3:2 majority decision declaring Triple Talaq unconstitutional. The five-judge panel that heard the contentious triple talaq case in 2017 was made up of people of various faiths.

• According to Justices Rohinton Nariman and Uday Lalit, talaq-e-bidat is governed by Muslim personal law (Shariat) application 8, 1937. They argued that the practice is unconstitutional because it is arbitrary.
• Justice Kurian Joseph, on the other hand, stated that triple talaq is prohibited by the Quran and thus lacks legal sanction. He expressed the view that “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 claimed that the practice of Instantaneous Triple Talaq is against both theology and law and that it cannot be validated simply because it is practiced by a large number of people.
• According to Chief Justice Khehar and Justice Abdul Nazeer’s dissenting minority opinion, such a practice is an essential religious element of Islam. They justified their stance by claiming that talaq-e-biddat is practiced by a large number of people.
• As a result, with the passage of the Muslim Women (Protection of Rights on Marriage) Act in 2019, the court established a legal prohibition on Triple Talaq. The practice of Triple Talaq was declared unconstitutional by the Supreme Court of India on August 22, 2017.

ANALYSIS

Every law in a country must be in accordance with the country’s Constitution. The most important question for the judges in this case was whether certain practices of Muslim personal law violated the country’s constitutional law. One such practice is triple talaq, in which a husband initiates divorce by pronouncing the word ‘talaq’ three times in a single sentence. The divorce is irreversible once it is granted, and the wife has no choice but to accept that the marriage is over. This type of divorce could not be initiated by a wife because it was only the husband’s right to do so, which violated the most important fundamental right of equality. The atrocities and sufferings endured by women as a result of this type of talaq violated their right to life and personal liberty, as the husband frequently refused to provide maintenance for her and the children. Furthermore, based on the Court’s findings, it can be stated that triple talaq was neither encouraged by the Prophet nor mentioned in their holy book, the Quran. Most Islamic countries have already prohibited this type of talaq. This legislation was enacted during the pre-constitutional period. As a result, if necessary, the doctrines of eclipse and severability must be applied. Triple talaq has never been recognized by the Quran or Sharia and is only practiced as a custom. This type of talaq has deteriorated and causes women pain and discrimination. It is also biased toward one gender.

Even though the practice of triple talaq has been declared unconstitutional in our country and a punishable offence by the Act of 2019, it cannot be said that divorces based on triple talaq have completely stopped. Somewhere in our country’s rural and backward areas, where there is little awareness of such a law’s existence, it is still practiced and goes unnoticed because these are not reported by anyone, whether by the victim or by someone else.

CONCLUSION

Shayara Bano v/s Union of India was a victory not only for Bano but for all Muslim women in India. The decision gave them a voice and shielded them from an unfair practice that could be used against them arbitrarily.