SHAYARA BANO V. UNION OF INDIA (2017)

CASE DETAILS^[2]

• Citation: AIR 2017 SC 4609; 9 SCC 1
• Date of Judgment: 22nd August 2017
• Court: Supreme Court of India
• Bench: 5-Judge Constitutional Bench
• Decision: 3:2 Majority (Unconstitutional)

JUDGES AND THEIR POSITIONS

Majority Opinion (3 Judges)

• Justice Rohinton Fali Nariman
• Justice Uday Umesh Lalit
• Justice K.M. Joseph (Concurring Opinion)

Minority/Dissenting Opinion (2 Judges)

• Chief Justice J.S. Khehar
• Justice S. Abdul Nazeer

PARTIES INVOLVED

Petitioner: Shayara Bano
Respondents: Union of India, Ministry of Law and Justice, Ministry of Women and Child Development, Ministry of Minority Affairs, National Commission for Women, All India Muslim Personal Law Board (AIMPLB), and Rizwan Ahmad (Petitioner’s husband)

Petitioner’s Counsel: Amit Chaddha and Salman Khurshid
Respondent’s Counsel: Mukul Rohatgi, Kapil Sibal, and Manoj Goel

INTRODUCTION

Shayara Bano v. Union of India (2017) has made an indelible mark on both family law and constitutional rights in India, as evidenced by its importance in terms of the wider family law and constitutional rights of women. This landmark judgment has become synonymous with the “Triple Talaq Case,” to reflect upon the larger issues at stake regarding the validity of the practice of instant issuance of three divorce decrees by kitab al-tabligh, also known as talaq-e-biddat. In particular, the case addresses whether the practice of issuing a divorce decree (on the basis of) having declared “talaq” three  times within the course of a single sitting, is valid.
The importance of the case arises from the inclusion of many issues associated with women’s rights, Constitutional protections, freedom of religion and laws governing persons, and is viewed as an initial step towards the establishment of gender justice in the Muslim community in India. Furthermore, the ruling establishes that the practice of arbitrary issuance of divorce decrees (in the context of instant notifications of divorce) is unconstitutional.

FACTS OF THE CASE

Shayara Bano was married to Rizwan Ahmad on 11th April 2001, according to Islamic Shariat law. The couple had been together for approximately 15 years and had two children, a son and a daughter. Their marriage appeared stable until October 10, 2015, when Rizwan Ahmad divorced Shayara Bano through the practice of talaq-e-biddat, commonly known as triple talaq or instant talaq. During this pronouncement made in the presence of two witnesses, he uttered “talaq, talaq, talaq” three times consecutively in a single sitting, thereby instantly and irrevocably dissolving the marriage.^[3]

This abrupt and unilateral action left Shayara Bano devastated and without any protection or support. Faced with this injustice and recognizing the arbitrary nature of the practice, Shayara Bano filed a writ petition before the Supreme Court of India in February 2016, challenging the constitutional validity of the triple talaq practice and related Muslim personal law practices. She stated that talaq-e-biddat was arbitrary, unjust, against gender equality and not essential to islam.

TRIPLE TALAQ: WHAT IS IT?

Triple talaq^[4] (talaq-e-biddat or talaq-e-mughallazah) is a form of Islamic divorce that was historically available to Muslim men in India, particularly followers of the Hanafi Sunni school of Islamic jurisprudence. Under this practice, a Muslim husband could legally and irrevocably divorce his wife by pronouncing the word “talaq” (meaning divorce) three times consecutively in a single sitting. The pronouncement could be made orally, in writing, or through modern electronic means such as telephone, SMS, email, or social media messages. This practice required no justification, consent from the wife, or attempt at reconciliation. It was entirely unilateral and could be done capriciously without any formal procedure or legal requirement.

KEY ISSUES BEFORE THE COURT

The Supreme Court was tasked with addressing several critical constitutional questions:

1. Whether triple talaq is an essential and integral part of Islamic religious practice and therefore protected under Article 25 of the Indian Constitution (Right to Freedom of Religion).
2. Whether the practice of triple talaq violates the fundamental rights of women, particularly Articles 14 (Right to Equality), Article 15 (Prohibition of Discrimination on grounds of sex), and Article 21 (Right to Life and Personal Liberty) of the Indian Constitution.
3. Whether triple talaq is unconstitutional and whether personal law is amenable to constitutional review under Part III of the Constitution.
4. Whether religious freedom under Article 25 can override the fundamental rights guaranteed to women under the Constitution.

ARGUMENTS PRESENTED

Petitioner’s Arguments (Shayara Bano)
Shayara Bano, through her counsel Amit Chaddha, contended that triple talaq and other related practices violated her fundamental rights. She challenged three specific practices under Muslim personal law: talaq-e-biddat (instant triple talaq), polygamy (multiple wives), and nikah-halala (remarrying the former husband through an intermediary). The petitioner argued that these practices were manifestly arbitrary, particularly triple talaq, which allowed a husband to dissolve marriage unilaterally without any cause or attempt at reconciliation. She emphasized that these practices were against the basic principles of Islamic jurisprudence as described in the Quran and violated constitutional guarantees of equality and non-discrimination.

Respondent’s Arguments (AIMPLB)
The All India Muslim Personal Law Board (AIMPLB) strongly opposed the petition, arguing that uncodified Muslim personal law was beyond the court’s jurisdiction for constitutional review. They contended that these practices were integral to Islam and protected under Article 25 of the Constitution^[5], which guarantees freedom of religion. The AIMPLB argued that the court should not interfere with religious personal law matters and that any changes should be made by the Muslim community itself through legislative means or religious consensus.

MAJORITY JUDGMENT

The three-judge majority delivered a landmark decision declaring triple talaq unconstitutional. Justice Kurian Joseph, in his concurring opinion, provided the most detailed reasoning. The majority held:

1. Triple Talaq is NOT an Essential Religious Practice
The majority judgment  indicated that Triple Talaq is NOT an Important Religious Duty in Islam and is therefore not protected by Article 25 of the Indian Constitution. The Court also viewed that although the Quran does allow for divorcing a spouse with only 1 utterance of the word ‘talaq’, it does NOT condone using it many times within a single moment of time. Instead, the Quran establishes a guideline in which the Divorce Law requires a waiting period of 90 days before the Divorce becomes final, providing both parties with an opportunity to reconcile their differences.^[6]
2. Violation of Fundamental Rights
The majority of judges agreed that Triple Talaq is a completely random system of breaking off a marriage and therefore violates Article 14 (Right to Equality)^[7], which is contained in the Indian constitution. It gives men arbitrary powers to end their marriages based solely on whim and fancy, with no reason given or chance for arbitration, and no right for the woman to have her say. The arbitrary nature of this process is contrary to the constitution, which states that every individual possesses equal rights. Moreover, Triple Talaq violates Article 15,^[8] which prohibits discrimination on the basis of gender, by giving a man the right to terminate his marriage, and also violates Article 21 (Right to Life and Personal Liberty)^[9] because it interferes with the Female’s Legal Status, Dignity and Personal Liberty.^[10]
3. Personal Law is Subject to Constitutional Review
The majority held that personal law is not beyond constitutional scrutiny and must conform to the fundamental rights guaranteed under Part III of the Constitution.^[11] The court emphasized that no personal law, whether based on religion or tradition, can override the fundamental rights of citizens. The Constitution’s supremacy extends to all laws, including personal laws.4. Declaration of Unconstitutionality
The court declared triple talaq void and illegal with immediate effect. Any divorce pronounced through triple talaq was deemed legally ineffective and invalid. The court also imposed an injunction against husbands pronouncing instant triple talaq on their wives.

5. Direction to Government
The Supreme Court directed the Government of India to consider the court’s judgment and promulgate legislation within six months to regulate the practice of divorce among Muslims and address the issues raised in the judgment.

MINORITY JUDGMENT

Chief Justice J.S. Khehar and Justice S. Abdul Nazeer, while  agree with the majority that triple talaq is problematic and undesirable, dissented from the majority’s decision. Their minority opinion suggested a different approach:^[12]

Key Points of Dissent

1. No Judicial Authority: The Minority is of the view that the Courts do not have any authority to invalidate the practice of Triple Talaq because of its unacceptable and problematic nature. Instead, the Minority believes that this issue lies with the legislature to resolve.
2. Preference for Legislative Action: The Minority would prefer the enactment of specific laws by Parliament that would either govern or prohibit the practice of Triple Talaq, rather than having the Judiciary declare it unconstitutional.
3. Six-Month Suspension: The Minority suggests that the practice of Triple Talaq be immediately suspended for a period of six months while the Government can develop proper legislation regulating the Muslim community’s practices regarding divorce.
4. Religious Freedom Concerns: The Minority Opinion places greater emphasis on Religious Freedom, particularly in relation to Personal Laws, and expresses concern about Judicial intervention in the area of Religious Practices.

IMPLICATIONS AND CONSEQUENCES

Immediate Legal Consequences

1. Void and Illegal: Triple talaq pronounced after the judgment date became legally invalid and void.
2. No Immediate Effect: Any triple talaq pronounced after August 22, 2017, would not dissolve the marriage, and the couple would remain married until a valid divorce was obtained.
3. Injunction Against Practice: Husbands were enjoined from pronouncing triple talaq on their wives.

Legislative Follow-up

In response to the Supreme Court’s directive, Parliament moved swiftly. The Muslim Women (Protection of Rights on Marriage) Bill, 2017^[13] was introduced and passed by the Lok Sabha on December 28, 2017. Subsequently, the Muslim Women (Protection of Rights on Marriage) Act, 2019^[14] was passed and came into effect on August 1, 2019.This legislation:

• Criminalized the pronouncement of instant triple talaq
• Made it punishable with up to three years imprisonment and a fine
• Protected women’s financial rights by ensuring maintenance and custody of children
• Provided for provisions of the Wakf Board to support destitute divorced women

CONSTITUTIONAL PRINCIPLES ESTABLISHED

This judgment established several crucial constitutional principles:

1. Primacy of Fundamental Rights: Constitutional fundamental rights will take precedence over any personal law practice.
2. Arbitrariness and Article 14: The concept of arbitrariness applies to personal law practices, meaning that practices that permit arbitrary and capricious exercises of power will contravene the provisions of Article 14.
3. Gender Equality: Article 15 prohibits discrimination based upon gender; therefore, personal law practices that discriminate against women such as marriages without consent of women can be voided.
4. Constitutional Review of Personal Law: Personal laws, which are governed by religious beliefs should be subject to review and ensure conformity to the fundamental rights outlined in the Constitution, including freedom of religion.
5. Essential Religious Practice Test: Simply because a particular practice is a religious belief does not confer protection under Article 25; there must be proof that the practice is essential to the religion’s tenets and does not violate any fundamental right.

SIGNIFICANCE AND IMPACT

The Shayara Bano judgment represents a watershed moment in Indian jurisprudence:

1. Gender Justice: The decision recognised that gender equality can not be justified based upon religious personal law by affirming that all women must be equally protected under the laws of India.
2. Women’s Empowerment: It also provided the legal protection for Muslim women against unilateral divorce for all women, creating considerable protections against arbitrary divorce based upon gender.
3. Secularism and Constitutionalism: The judgement affirmed the principle of equal application of the Constitution of India to all citizens of India, without regard to religion
4. Judicial Activism:The Shayara Bano case demonstrated the role of judicial activism in furthering the course of social justice by acting to protect vulnerable populations against abuse of power
5. Balance Between Religion and Rights: while religious freedom is a right, that freedom may not be exercised in such a way that it denies the fundamental rights of the citizens put into the position to be abused.
6. Precedent for Reform: This judgement represents a precedent for judicial reform in the realm of personal laws when fundamental rights are violated.

CONCLUSION.
Shayara Bano’s case was a historical legal ruling which stressed the importance of gender equality and the values set out within India’s Constitution over that of traditional religious personal laws within specific religions. The way the Supreme Court ruled on Shayara Bano’s case outlined that no matter how old, historical or religiously justified a particular law is, no laws should violate one’s fundamental rights. The court’s ruling illustrates the ability of India’s Constitution to adapt to changing needs through judicial involvement to protect groups that may otherwise be placed at risk, while still preserving the religious freedom rights of each of its citizens. In response to the Supreme Court’s decision, Indian Parliament passed legislation that supported the court’s ruling, and banned the use of triple talaq, thus making it illegal to introduce triple talaq in civil courts and requiring criminal prosecution. Shayara Bano’s case is a central topic of discussion regarding personal laws, religious freedom and constitutional rights in India.

^[1] Indian Kanoon, ‘Shayara Bano v. Union of India and Ors.’< https://indiankanoon.org/doc/115701246/> Accessed 27 November, 2025

^[2] LawBhoomi, ‘Shayara Bano v Union of India – Case Summary’ (LawBhoomi, n.d.) <https://lawbhoomi.com/shayara-bano-v-union-of-india/> Accessed 27 November, 2025

^[3] Supreme Court Observer, “Triple Talaq – Supreme Court Observer” (Supreme Court Observer, July 21, 2022) <https://www.scobserver.in/cases/shayara-bano-union-india-triple-talaq-case-background/> Accessed 27 November, 2025

^[4] Parveen G, “Triple Talaq- Islamisation of Women and Global Perspective – IPleaders” (iPleaders, January 2, 2020) <https://blog.ipleaders.in/triple-talaq-2/> Accessed 27 November, 2025

^[5] Article 25 in Constitution of India, IndianKanoon <https://indiankanoon.org/doc/631708/> Accessed 27 November, 2025

^[6] “Shayara Bano vs Union of India (2017): Triple Talaq Judgment” (Testbook) <https://testbook.com/landmark-judgements/shayara-bano-vs-union-of-india> Accessed 27 November, 2025

^[7] “Article 14 of the Indian Constitution” (iPleaders, August 4, 2024) <https://blog.ipleaders.in/article-14/> Accessed 27 November, 2025

^[8] Constitution of India, “Article 15: Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth – Constitution of India” (Constitution of India, March 30, 2023) <https://www.constitutionofindia.net/articles/article-15-prohibition-of-discrimination-on-grounds-of-religion-race-caste-sex-or-place-of-birth/> Accessed 27 November, 2025

^[9] Article 21 in Constitution of India, IndianKanoon <https://indiankanoon.org/doc/1199182/> Accessed 27 November, 2025

^[10] Shayara Bano vs Union of India, (Testbook) <https://testbook.com/landmark-judgements/shayara-bano-vs-union-of-india> Accessed 27 November, 2025

^[11] THE CONSTITUTION OF INDIA (Part III.—Fundamental Rights.—Arts. 15-16.) <https://www.mea.gov.in/Images/pdf1/Part3.pdf> Accessed 27 November, 2025

^[12] “Shayara Bano v. Union of India – iPleaders” (iPleaders, November 1, 2022) <https://blog.ipleaders.in/shayara-bano-v-union-of-india/> Accessed 27 November, 2025

^[13] Prasad RS, “THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017” (2017) <https://prsindia.org/files/bills_acts/bills_parliament/2017/Muslim%20Women%20(Protection%20of%20Rights%20on%20Marriage)%20Bill,%202017.pdf> Accessed 27 November, 2025

^[14] “Muslim Women (Protection of Rights on Marriage) Act, 2019” (July 31, 2019) <https://www.indiacode.nic.in/handle/123456789/11564> Accessed 27 November, 2025