Shayara Bano Vs Union of India ( AIR 2017 9 SCC 1 SC)

Published On: 16th March, 2024

Authored By: Rishabh Krishan
Amity University Jharkhand

Introduction

The Triple Talaq case is another name for the Shayara Bano v. Union of India case. The Muslim tradition of Triple Talaq was declared illegal due to Shayara Bano’s case. By saying the phrase “TALAQ” three times, a Muslim man can immediately file for divorce according to “Sharia Law” without the help of the government. The communication methods could be written, verbal, or even technological, which increased the risk of a Muslim woman in this kind of unjustified and unpopular divorce. In Arabic, “Talaq” means “divorce.”

Appellant’s Name

Shayara Bano and other

Respondent’s Name

Rizwan Ahmed, the All-India Muslim Personal Law Board, and the Union of India

Date of Judgment

22nd August 2017

Judges

Justice Rohinton Fali Nariman, Justice S. Abdul Nazeer, Justice Uday Lalit, Justice K.M. Joseph, and Justice Jagdish Singh Khehar.

Facts

For fifteen years, Muslim Shayara Bano had been married to Rizwan Ahmed. However, he used triple talaq to divorce her in 2016 without giving any reason. Retaliating for this, she filed a writ suit in the Supreme Court, arguing that multiple marriages and nikah halala are unconstitutional since they violate women’s fundamental rights (articles 14, 15, 21, 25). The opposition, the entire nation’s Muslim Personal Law, contended that divorce is a protected practice of Islam within Article 25 of the Indian Constitution and that, as a result, Muslim law has not been codified and is not susceptible to judicial review.[i]

In 2017, after accepting Shayara Bano’s appeal, the Court established a five-judge constitutional bench. On May 11, 2017, the very first hearing took place, and on August 22, 2017, the decision in the case was made.

Issue of the Case

  1. Is the Talaq-e-Biddat ritual, which mentions immediate Triple Talaq in particular, an important Islamic practice?
  2. Does the Triple Talaq practice violate the Indian Constitution’s fundamental rights?[ii]

Arguments proposed by the petitioner.

Mr. Amit Chandha entered the debate by claiming that Islamic personal law does not acknowledge the “Triple Talaq” kind of divorce. Additionally, they said that the Quran did not support triple talaq or unilateral divorce. Under Muslim law, a divorce requires two things: a prior attempt at reconciliation and a reasonable cause.

He further contended that it should be rejected since it violates Articles 14 and 15 of the Constitution. He proposed a different divorce law known as the “Dissolution of Muslim Marriages Act, 1939,” which would allow for divorce for any member of the Muslim community, regardless of gender.

Arguments proposed by the respondent.

Mr. Kapil Sibal, who represented the respondents, contended that the act known as the Shariat establishes guidelines for decision-making in cases where custom or usage deviates from Muslim personal law rather than codifying it. Additionally, he said that Muslim law views marriage as a private agreement that is unassailable by the government. He drew attention to the Constitution’s concept of law, which expressly excludes personal laws.

He continued by saying that the court could only examine its constitutionality if the parliament had passed legislation on the subject, by the terms of Article 25 as part of the Constitution of the country, which gives the house the authority to enforce laws about social reforms connected to secular activities. Regarding the issue of discrimination against women, he stated that they are free to declare marriage if they so want, to forbid the husband’s capacity to file for divorce through talaq-e-bidet in Nikahnama, to demand an excessive dower or Mehr subsequently, and to continue.

Reasoning

The answers given by the court to the issue raised in the case.

Is the Talaq-e-Biddat ritual, which mentions immediate Triple Talaq in particular, an important Islamic practice?

Important practice is dependent on their custom. The necessary practices are vital to expanding that religion; if such a practice or habit is not followed or has limited follow means, then it is not just the necessary religious ritual of that religion. It is frequently referred to as “that religion’s animated practice.” According to Article 25, that right gets violated if the state gets involved due to the invasion of such a religious practice.

Furthermore, they stated that the immediate triple talaq of Muslims is not a fundamental Muslim practice and that it is not observed in the manner of Muslim countries. J.S. Khehar, the minority judge, brought up this issue and argued that since it was approved by a religious organization and the greatest number of people, it was the most fundamental religious practice and hence protected under the constitution.[iii]

Does the Triple Talaq practice violate the Indian Constitution’s fundamental rights?

The Constitution states in Article 25, states that you cannot eliminate a religious practice if it is deemed to be important, but you can do so if it is not, and it is determined to be unreasonable. According to the majority ruling, even though it is held to by a school of thought known as Hannifin, Islamic theology still views it as an immoral subject, hence it is not protected under Article 25.

It goes against the basic concepts of the Quran completely, and if it is determined to be irrational and contradictory to Quran principles, it violates the Shariat Function as well. Furthermore, the Constitution does not support something just because many people follow it.

Judgment

The Supreme Court’s five-judge panel ruled in Shayara Bano and the other plaintiffs’ favor. By a vote of 3:2, it ruled that the Triple Talaq practice was unconstitutional and ordered the government to take action to end the unfair treatment of women. The Supreme Court in this particular case underlined that although the Hanafi School is the group that practices triple talaq the most, it is still an unlawful practice.

The Court stated in giving its decision that several other Muslim nations have previously prohibited this custom the Quran does not support it and the Prophet Muhammad neither supported nor followed it. The Court ruled that the practice violated the Constitution’s fundamental rights.

Different opinions and comments by different judges

Talaq-e-Biddat is provided for in Muslim Law Proposals (Shariat)  of 1937, as stated by Justices Rohinton Nariman along Uday Lalit. They claimed that the act in question was unconstitutional and unfair.

Triple talaqs have no legal standing because they are forbidden by the Qur’an, according to Justice K.M Joseph’s undisputed opinion. He argues that what is wrong within the Holy Quran may not be considered a good Sharia law and that what is wrong in religion is equally wrong in law.

Specifically, during their discussions on Articles 25 as well as 44 of the Constitution of India, Chief Justice Khehar along with Justice Abdul Nazeer, during their minority disagreement, connected the position of fundamental rights with the advancement of the laws of the person, or the statute of law. claimed to be a unique feature. Thus, it is protected under Article 25. Furthermore, the Act is a solution for gender discrimination in talaq-e-bidet, however, it fails to challenge the validity of such practices.[iv]

Conclusion

The practice of triple talaq, or talaq-e-biddat, was ruled unlawful by the Apex Court in the mentioned case by a 3:2 majority. Additionally, the Muslim Women (Protection of the Rights on Marriage) Bill of 2019, which was just enforced by the Indian parliament on July 30, 2019, officially declared triple talaq to be unlawful and unconstitutional. It also turned it a criminal offense. The ladies who were subjected to Triple Talaq have at last received justice from the courts. The court has made sure that equality principles, particularly those of gender equality, are more than just theoretical concepts.

Reference(s):

[i] https://blog.ipleaders.in/shayara-bano-v-union-of-india/

[ii] https://www.legalserviceindia.com/legal/article-8548-case-analysis-of-shayara-bano-v-s-union-of-india.html

[iii] https://lawbhoomi.com/shayara-bano-vs-union-of-india-2017-9-scc-1/#:~:text=Introduction-,Shayara%20Bano%20vs.,Triple%20Talaq%20to%20be%20unconstitutional

[iv] https://www.legallore.info/post/shayara-bano-v-union-of-india-and-ors-triple-talaq-case

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