Published on 1st May 2025
Authored By: Lakshya Kumar Singh
Institute of Engineering and Management
Case Name : Shayara Bano v. Union of India & Others[1]
Petitioner (Applicant): Shayara Bano
Respondents: Union of India, All India Muslim Personal Law Board (AIMPLB), and Others
Date of Judgment: 22 August 2017
Court: Supreme Court of India
Bench: Five-Judge Constitution Bench
- Chief Justice J.S. Khehar
- Justice Kurian Joseph
- Justice R.F. Nariman
- Justice U.U. Lalit
- Justice S. Abdul Nazeer
Introduction
The case of Shayara Bano v. Union of India (2017) is an important judgment by the Supreme Court of India that declared Triple Talaq (Talaq-e-Bid’ah) unconstitutional. Triple Talaq was a practice where a Muslim man could instantly divorce his wife by saying “talaq” three times in one sitting. This case was important because it protected the rights of Muslim women and promoted gender equality in India.
Brief Facts of the Case
Shayara Bano, a Muslim woman, was married to Rizwan Ahmed for 15 years. However, in 2016, her husband divorced her through Triple Talaq (Talaq-e-Bid’ah) without providing any reason. This sudden and unilateral divorce left her without financial support or legal protection.
In response, Shayara Bano filed a writ petition in the Supreme Court of India, challenging the validity of Triple Talaq along with the practices of Polygamy and Nikah Halala. She argued that these practices violated her fundamental rights under:
Article 14 (Right to Equality)
Article 15 (Protection against Discrimination)
Article 21 (Right to Live with Dignity)
Article 25 (Freedom of Religion)
Several women’s rights organizations, including BEBAK Collective and Bhartiya Muslim Mahila Andolan, supported her petition. On the other hand, the All India Muslim Personal Law Board (AIMPLB) defended Triple Talaq, arguing that Muslim personal law is not codified and is therefore not subject to judicial review. Divorce is a religious practice protected under Article 25, and the court should not interfere in religious matters.
The Supreme Court accepted Shayara Bano’s petition and constituted a five-judge Constitution Bench in 2017. The first hearing took place on May 11, 2017, and after several deliberations, the final judgment was delivered on August 22, 2017.
Issues Involved
- Is the practice of Talaq-e-Bid’ah (instant Triple Talaq) an essential religious practice in Islam, and is it protected under Article 25 of the Indian Constitution?
- Does the practice of Triple Talaq violate the fundamental rights of Muslim women under the Indian Constitution, making it unconstitutional?
Arguments from the Petitioner’s Side
Mr. Amit Chadha, representing the petitioner Shayara Bano, argued that Triple Talaq (Talaq-e-Bid’ah) was not an essential part of Islamic law and lacked any Quranic sanction. He pointed out that this form of divorce was neither recognized in the Shariat Application Act, 1937 nor encouraged by Prophet Muhammad (PBUH). Instead, it had developed over time as a misinterpreted custom rather than a religious mandate.
To support his argument, he cited several cases where courts had questioned the validity of instant Triple Talaq. One key case he referred to was Shamim Ara v. State of Uttar Pradesh (2002), where the Supreme Court laid down guidelines for a valid talaq, emphasizing that proper procedure and reasoning were required for a divorce to be legally effective.
He further contended that Triple Talaq violated Articles 14 and 15 of the Indian Constitution by granting Muslim men an arbitrary and unilateral power to end a marriage, thereby discriminating against Muslim women. He urged the court to strike down Triple Talaq and argued that if banned, the Dissolution of Muslim Marriage Act, 1939 would apply equally to all members of the community, ensuring gender-neutral divorce rights.
Arguments from the Respondent’s Side
Mr. Kapil Sibal, representing the All India Muslim Personal Law Board (AIMPLB) and other respondents, defended the validity of Triple Talaq by arguing that Muslim personal law is not codified under the Shariat Act, 1937. He stated that the Act merely provides guidelines for decision-making in cases where customary practices conflict with Islamic principles, but it does not codify or regulate personal laws.
He further contended that marriage under Muslim law is a private contract, and therefore, it cannot be questioned or interfered with by legislation or the judiciary. Referring to the definition of ‘law’ under the Indian Constitution, he argued that personal laws are not included and should remain outside the scope of judicial review.
Regarding the court’s power to assess the validity of Triple Talaq, he referred to Article 25 of the Constitution, which grants individuals the right to practice and propagate religion. He asserted that the parliament alone has the power to introduce reforms in religious practices related to secular activities, and unless a law is enacted, the court should not intervene in matters of personal law.
On the issue of gender discrimination, Mr. Sibal argued that Muslim women already have certain safeguards under Islamic law. He stated that:
- Women can register their marriage officially.
- They can include conditions in the Nikahnama to prohibit the husband from using Talaq-e-Bid’ah.
- They can demand a high dower (Mehr) as financial security.
Thus, he maintained that Triple Talaq was a religious practice protected under Article 25, and Muslim women had legal options to protect their rights within the existing framework.
Judgment of the Court
The five-judge Constitution Bench of the Supreme Court ruled in favour of Shayara Bano and declared the practice of Triple Talaq unconstitutional by a 3:2 majority. The Court held that this practice violated fundamental rights and directed the legislature to take appropriate measures to prevent its misuse and protect the rights of Muslim women.
The Court observed that while the Hanafi School of Islamic law commonly followed Triple Talaq, it was considered sinful and lacked Quranic sanction. It emphasized that several Muslim-majority countries had already abolished the practice, as it was neither encouraged nor practised by Prophet Muhammad (PBUH).
Furthermore, the Court ruled that Triple Talaq was unconstitutional as it violated fundamental rights under Part III of the Indian Constitution, particularly Article 14 (Right to Equality) and Article 21 (Right to Life and Dignity). The judgment reinforced the idea that personal laws could not override the constitutional rights of individuals, especially when they led to discrimination and injustice.
Rule of Law
- Articles 14 and 15 of the Constitution
The petitioner Shayara Bano, argued that the practice of Triple Talaq (Talaq the Hanafi School of Islamic law commonly followed Triple Talaq-e-Bid’ah) violated fundamental rights guaranteed under the Indian Constitution. The primary argument was based on Article 14, which ensures the right to equality for all citizens, and Article 15, which prohibits discrimination based on caste, religion, race, gender, etc.
The right to Instantaneous divorce (Triple Talaq) was exclusively available to Muslim men, allowing them to end a marriage arbitrarily without restrictions or justification, whereas Muslim women had no equivalent right. This created gender inequality, making the practice discriminatory and unconstitutional.
Applying the Doctrine of Eclipse and Severability, the Supreme Court held that if any law violates fundamental rights under Part III of the Constitution, it must be struck down. Since Triple Talaq granted men unchecked power over women in marriage and violated their right to equality and dignity, it was deemed unconstitutional and struck down by the Court.
- Article 25 of the Constitution
Another key issue in the case was whether Triple Talaq was an essential religious practice protected under Article 25, which guarantees the right to freedom of religion. The respondents argued that Triple Talaq was a religious practice and should be protected under Article 25, which allows individuals to practice, profess, and propagate their religion.
However, the Court clarified that the right to religious freedom is not absolute and is subject to reasonable restrictions in matters concerning:
- Public order
- Morality
- Health
The Supreme Court observed that Triple Talaq lacked Quranic sanction and was not recognized as an essential practice in Islamic law. The Quran advocates a structured and just process of divorce, ensuring fairness and reconciliation between spouses. Since many Islamic countries had already abolished Triple Talaq, the Court reasoned that it could not be considered an integral part of Islam.
In its ruling, the Court stated that:
“A practice that is considered sinful in theology cannot be upheld as virtuous in law and protected under the shield of legislation.”
Thus, Triple Talaq was not only unconstitutional but also not an essential religious practice, making it subject to legal intervention.
Opinions of Different Judges
The five-judge Constitution Bench of the Supreme Court had differing opinions regarding the validity of Triple Talaq. While the majority (3:2) struck down the practice, two judges dissented, arguing that Triple Talaq was protected under religious freedom.
Majority Opinion (Justice Rohinton Nariman, Justice Uday Lalit, and Justice Kurian Joseph)
- Justice Rohinton Nariman and Justice Uday Lalit
Both justices held that Triple Talaq was manifestly arbitrary, allowing a husband to unilaterally break the marital bond without any justification, leaving the wife with no legal recourse.
They ruled that Triple Talaq violated Article 14 of the Indian Constitution as it discriminated against women by giving Muslim men an unchecked power of divorce.
On the question of essential religious practices, they stated that only those practices that form the core of a religion and are directly related to its profession and propagation can be protected under Article 25. Since many Islamic countries had already abolished Triple Talaq, they reasoned that it was not an essential practice of Islam and thus could not be shielded under religious freedom.
They also compared Triple Talaq to Sati Pratha in Hinduism, arguing that even though Sati was historically practised it was eliminated due to its regressive and discriminatory nature. Similarly, Triple Talaq needed to be abolished.
- Justice Kurian Joseph
Justice Joseph did not focus on constitutional arguments but instead emphasized that Triple Talaq lacked Quranic sanction. He stated that what is sinful in theology cannot be upheld as valid in law, reinforcing his decision with Islamic scholarly commentary to avoid communal controversy.
Dissenting Opinion (Chief Justice J.S. Khehar and Justice S. Abdul Nazeer)
- Chief Justice J.S. Khehar
He argued that Muslim personal laws are not state-enacted laws but are based on religious texts and customs. Since fundamental rights apply only to state-made laws, he contended that Triple Talaq could not be tested on constitutional grounds. He believed that personal laws were beyond judicial scrutiny and that any reform should come from the legislature, not the courts.
- Justice S. Abdul Nazeer
He supported Justice Khehar’s view that Triple Talaq was an intrinsic part of Muslim personal law and protected under Article 25. He maintained that since personal laws are not codified, they should not be subjected to judicial review.
Counter to the Dissenting Opinion
Justice Nariman countered this view by stating that Triple Talaq qualified as a “law in force” under the Constitution because:
The word “Talaq” was mentioned in Section 2 of the Shariat Act, of 1937, making it a general authority.
It was also referred to in the Dissolution of Muslim Marriage Act, of 1939, bringing it under the purview of state-enacted laws.
As a result, Triple Talaq could be challenged on constitutional grounds since it was recognized by Indian law.
Final Verdict
The majority (3:2) struck down Triple Talaq, ruling that it was unconstitutional, arbitrary, and discriminatory against women. The Court directed the government to pass a law regulating Muslim divorce, which later led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, making Triple Talaq illegal in India.
Steps Taken by the Government
Following the Supreme Court’s judgment in 2017, the Government of India took legislative measures to eliminate the practice of Triple Talaq. To protect Muslim women’s rights and prevent misuse, the Parliament of India enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019.
Key provisions of the Act
Section 3: Declares the practice of Talaq-e-Bid’ah (Triple Talaq) void and illegal.
Section 4: Prescribes punishment for any husband who pronounces Triple Talaq. He may face up to three years of imprisonment along with a fine.
Section 5: Entitles the wife to financial support (maintenance/allowance) for herself and her dependent children, to be provided by the husband.
Section 7: Categorizes Triple Talaq as a cognizable and compoundable offence. The husband cannot be granted bail unless the court is satisfied that reasonable grounds exist for his release.
This Act reinforced the Supreme Court’s decision and provided legal protection to Muslim women, ensuring their right to dignity and equality in marriage.
References
[1]Shayara Bano vs Union of India (2017) 9 SSC 1 (India)
