Shayara Bano v. Union of India – Triple Talaq

Introduction

The case of Shayara Bano v. Union of India (2017) ¹stands as a monumental judgment in Indian  constitutional history, where the Supreme Court examined the constitutional validity of the  Islamic practice of Talaq-e-Biddat (instant triple talaq). Rooted in personal laws applicable to  Muslims in India, this form of divorce allowed a Muslim man to unilaterally dissolve his  marriage by pronouncing “talaq” three times in one sitting, without the wife’s consent or  judicial oversight.

The petitioner, Shayara Bano, approached the apex court after being divorced through this  practice. She argued that Talaq-e-Biddat violated her fundamental rights under Articles 14  (Right to Equality), 15 (Prohibition of Discrimination), 21 (Right to Life and Personal Liberty),  and 25 (Freedom of Religion) of the Constitution. The case triggered a broader legal and social  debate about the balance between the protection of religious practices and the guarantee of  individual rights, especially for Muslim women.

The Supreme Court, in a historic and split decision, invalidated the practice, holding that Talaq e-Biddat was arbitrary and unconstitutional. The judgment was a progressive step towards  gender justice and led to legislative action in the form of The Muslim Women (Protection of  Rights on Marriage) Act, 2019, which criminalised the practice.

Facts of the Case

Shayara Bano, a 35-year-old woman from Uttarakhand, was married to Rizwan Ahmed for 15  years. In 2016, she received a letter of divorce from her husband, who had unilaterally ended  their marriage by pronouncing talaq thrice in one sitting—commonly referred to as Talaq-e Biddat or instant triple talaq. The divorce was neither preceded by reconciliation efforts nor  any judicial procedure.

Shayara Bano claimed that she had suffered extensive abuse, including domestic violence,  dowry demands, and forced abortions during her marriage. After being divorced via a method  that gave her no opportunity to respond or contest, she approached the Supreme Court of India  under Article 32 of the Constitution, seeking a declaration that Talaq-e-Biddat, polygamy, and  nikah halala (a practice requiring a woman to marry and consummate marriage with another  man before remarrying her former husband) were unconstitutional.²

Her petition was supported by several women’s rights organisations and individual petitioners,  who argued that these practices were discriminatory, arbitrary, and violative of fundamental  rights. In contrast, the All India Muslim Personal Law Board (AIMPLB) defended Talaq-e Biddat as an essential religious practice protected under Article 25 of the Constitution.

¹Shayara Bano v. Union of India, (2017) 9 SCC 1.

²INDIA CONST. art. 32

Due to the wide-reaching implications for personal law, gender justice, and religious freedom,  the matter was referred to a five-judge Constitutional Bench, which heard the case in May 2017  and delivered its judgment in August 2017.

Legal Issues

The Supreme Court was called upon to determine the constitutionality of the practice of Talaq e-Biddat under the Indian Constitution. The following key legal issues were framed:

1. Whether Talaq-e-Biddat is an essential religious practice under Islam and thereby protected under Article 25 of the Constitution?

The court had to examine if the practice was integral to Islamic faith and thus immune from  constitutional scrutiny under the right to freedom of religion.³

2. Whether Talaq-e-Biddat violates the fundamental rights guaranteed under Articles 14, 15, and 21 of the Constitution?

The question here was whether the practice was arbitrary, discriminatory against Muslim  women, and violative of the right to equality, non-discrimination, and dignity.⁴

3. Whether personal laws are subject to constitutional scrutiny under Part III (Fundamental Rights) of the Constitution?

This raised a broader constitutional question: Can religiously-grounded personal laws be tested  against fundamental rights, or are they beyond the scope of judicial review?

4. Whether the Muslim Personal Law (Shariat) Application Act, 1937 gives statutory status to Talaq-e-Biddat, and if so, can it be challenged as “law” under Article 13(1) of the Constitution?

The court examined whether the 1937 Act, by codifying Shariat principles, had made the  practice of triple talaq a statutory provision and hence subject to constitutional limitations.⁵

Arguments by the Parties

Petitioner’s Arguments (Shayara Bano and supporting intervenors) 1. Violation of Fundamental Rights

o Talaq-e-Biddat was argued to be arbitrary, violating Article 14 (equality before  the law) and Article 15 (prohibition of discrimination based on sex).⁶

o It unilaterally empowered men, offering no corresponding right or remedy to  women, and thus infringed Article 21 (right to life and dignity).

³INDIA CONST. art. 25 ,cl. 1.

⁴INDIA CONST. arts. 14, 15(1), 21.

⁵ Muslim Personal Law (Shariat) Application Act, No. 26 of 1937, § 2, INDIA CODE.

⁶INDIA CONST. arts. 14, 15; Shayara Bano, (2017) 9 SCC 1 at ¶ 30–31.

2. Not an Essential Religious Practice

o The practice of Talaq-e-Biddat was not universally followed across Muslim  communities, and many Islamic countries had banned it.

o It was not part of the Quranic procedure for divorce, which involves  reconciliation and due process.

3. Reform in Other Islamic Nations

o Countries like Pakistan, Bangladesh, Tunisia, and Egypt had either abolished or  reformed the practice.

o India, being a secular and democratic republic, should not lag behind in  protecting the rights of Muslim women.

4. Statutory Nature of the Practice

o The 1937 Muslim Personal Law (Shariat) Application Act gave statutory  recognition to Muslim personal law, making it susceptible to constitutional  scrutiny under Article 13(1), which voids any “law” that contravenes  fundamental rights.

Respondents’ Arguments (AIMPLB and others)

1. Protection under Article 25

o The All India Muslim Personal Law Board (AIMPLB) contended that Talaq-e Biddat was an essential religious practice and hence protected under Article 25  (freedom of religion).⁷

o They argued that personal laws were part of religious freedom and should not  be interfered with by the courts.

2. Judicial Non-Intervention in Religious Practices

o The respondents claimed that the judiciary could not rewrite or reform religious  practices without violating the principle of secularism and religious autonomy.

3. Historical and Theological Legitimacy

o The practice had been followed by the Hanafi school of Sunni Islam for over  1400 years.

o AIMPLB claimed that while it may be “sinful” or “undesirable,” it was still  legally valid and recognised under Islamic jurisprudence.

4. Social Contractual Nature of Marriage

o Marriage under Islam was seen as a private contract, and talaq was a method of  dissolving it. Therefore, state intervention was unnecessary and unjustified.

⁷Id. at ¶ 33.

Part 5: Court’s Analysis and Reasoning

The Constitution Bench of the Supreme Court delivered a split 3:2 verdict on the validity of  Talaq-e-Biddat. The majority opinion struck down the practice as unconstitutional, while the  minority upheld its validity but called for legislative action.

Majority Opinion

(Justices R.F. Nariman, U.U. Lalit, and Kurian Joseph)

1. Violation of Article 14 – Arbitrary and Unreasonable

o Justice Nariman held that Talaq-e-Biddat was manifestly arbitrary, allowing  a Muslim man to divorce his wife without reason, without warning, and  without any scope for reconciliation.

o Such arbitrariness violates Article 14 of the Constitution, which guarantees  equality and non-arbitrariness in State action.

2. Not an Essential Religious Practice

o Justice Kurian Joseph observed that the Quranic procedure for divorce involves  attempts at reconciliation and a waiting period.

o Talaq-e-Biddat, lacking these safeguards, was against the spirit of Islam and  therefore not protected under Article 25 (freedom of religion).

3. Statutory Character of the Practice

o The majority held that the Muslim Personal Law (Shariat) Application Act,  1937 gave legal/statutory recognition to personal law practices like Talaq-e Biddat.

o Hence, it falls under the definition of “law” under Article 13(1) of the  Constitution and can be tested against fundamental rights.

Minority Opinion

(Chief Justice J.S. Khehar and Justice Abdul Nazeer)

1. Personal Law Not Covered by Article 13

o The minority ruled that personal law is not “law” as defined under Article 13,  and therefore cannot be struck down for violating fundamental rights.

2. Essential Religious Practice

o They accepted that Talaq-e-Biddat has been followed by a section of Muslims  (particularly the Hanafi school) for centuries.

o Thus, it qualifies as an essential religious practice, protected by Article 25.

3. Call for Legislative Action

o While upholding the validity of the practice, the minority acknowledged its  undesirability.

o They suggested that Parliament should enact legislation to regulate or prohibit  Talaq-e-Biddat and imposed a six-month injunction on its use to allow time  for reform.

Legal Rule, Outcome and Broader Significance

The core legal principle that emerged from Shayara Bano v. Union of India was that any  religious practice that is manifestly arbitrary, unjust, and violative of fundamental rights— particularly Article 14—cannot be protected under the guise of religious freedom. The Court  clarified that personal law, once codified or recognised by statute (as in the case of the Muslim  Personal Law (Shariat) Application Act, 1937), becomes subject to constitutional scrutiny  under Article 13(1). This was a crucial step in affirming that equality and dignity of women  must not be compromised by archaic and patriarchal customs, even if those customs claim  religious origins.

Outcome of the Case

In its final ruling delivered on 22 August 2017, the Supreme Court set aside the practice of  Talaq-e-Biddat by a 3:2 majority. While the minority opinion upheld the practice as part of  religious autonomy, the majority found it to be unconstitutional. As a result:

• Muslim men could no longer divorce their wives instantly and unilaterally using triple talaq in one sitting.
• The judgment rendered the practice legally void and unconstitutional from the date of the decision.
• The minority’s request to stay the ruling for six months to allow Parliament to legislate was not binding due to the majority decision invalidating the practice outright.

Aftermath and Legislative Action

Following the judgment, the Government of India enacted the Muslim Women (Protection of  Rights on Marriage) Act, 2019⁸, which:

• Declared Talaq-e-Biddat a criminal offence punishable by up to three years of imprisonment.
• Provided for subsistence allowance and custody of children to protect the rights of Muslim women.
• Emphasised that such divorces would be null and void in law.

⁸ The Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, INDIA CODE (2019).

This statute went a step further than the Court by criminalising the act, a move that generated  both support and criticism. Supporters saw it as a deterrent and a necessary safeguard for  Muslim women, while critics questioned whether criminal law was the appropriate remedy for  what had traditionally been a civil issue.

Significance of the Judgment

The judgment marked a milestone in the evolution of Indian constitutional jurisprudence,  particularly in terms of:

• Gender justice: It reaffirmed the constitutional mandate of equality before law and non-discrimination based on sex.
• Judicial intervention in personal law: It expanded the scope of judicial review to include statutorily recognised religious practices, opening the door for further reform.
• Secularism and the rule of law: The ruling reinforced the principle that no religious practice can supersede the Constitution, and that personal law must evolve in consonance with constitutional values.

Moreover, Shayara Bano became a symbolic case for the empowerment of Muslim women in  India, sparking debates on the Uniform Civil Code, judicial activism, and the limits of  religious autonomy.

Conclusion

The Shayara Bano judgment represents a transformative moment in Indian constitutional and  gender justice jurisprudence. By declaring the practice of Talaq-e-Biddat unconstitutional, the  Supreme Court not only upheld the principles of equality, non-discrimination, and dignity  enshrined in the Constitution, but also demonstrated the judiciary’s willingness to engage with  personal laws when they conflict with fundamental rights.

The decision is significant for multiple reasons. It affirms that individual rights take  precedence over unjust religious customs, particularly when those customs perpetuate  gender-based oppression. The Court’s emphasis on manifest arbitrariness as a ground for  striking down the practice strengthens the interpretive power of Article 14 and sets a wider  precedent for reviewing other arbitrary laws—both religious and secular.⁹

Equally important is the ruling’s symbolic power. It gave voice to countless Muslim women  who had long suffered under the threat of instant divorce without due process. The judgment  catalysed legislative action, leading to the enactment of the Muslim Women (Protection of  Rights on Marriage) Act, 2019, which criminalised the practice and ensured safeguards like  maintenance and custody rights.

Looking ahead, the judgment opens space for broader reform in personal law and underscores  the judiciary’s role as a guardian of constitutional morality. It also invites deeper discussion  on secularism, religious reform, and the potential contours of a Uniform Civil Code in India.

⁹Shayara Bano, (2017) 9 SCC 1 at ¶ 55, 80; INDIA CONST. arts. 14.