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Shayara Bano and Ors. v. Union of India


Authored By Siddharth Punj


Keywords : Triple Talaq; unconstitutional; Holy Quran; Talaq-i-Biddat; Personal law;


Shayara Bano and Ors. v. Union of India[1]

Equivalent Citation: (2017) 9 SCC 1

Petitioners: Shayara Bano and Ors.

Respondent: Union of India and Ors.

Bench: J S Kheher, U U Lalit, Rohiton F Nariman, Kurian Joseph and Abdul Nazeer


ABSTRACT

Triple Talaq, which is also called Talaq-i-Biddat or Talaq-i-Mughallazah is a form of dissolution of marriage in Islamic law. This tradition has been followed by Muslims in India from a very long time, particularly by the Sunnis of the Hanafi school of jurisprudence[2]. According to this custom, a marriage dissolves instantly with immediate effect when a Muslim male enunciate the word “talaq to his wife three times. The enunciation of the word “talaqcould be in any form like oral, written or through electronic media.

The colossal criticism and high number of cases evolving each day had made the issue of Triple talaq a matter of public interest until the case of Shayara Bano[3] in which the Supreme Court held this practice unholy and unconstitutional.


Introduction

Talaq is an Urdu word which literally means untying the knot, being freed from the contract of marriage. Talaq in Islamic law is a form dissolution of marriage in which a marriage is repudiated by the husband by pronouncing or uttering the word Talaq. There are various forms of talaq in Islamic law but we will focus on “talaq-i-biddat” as the plight of Shayara Bano is pivot on this form of talaq. The matter was listed to five-judge bench consisting of Chief justice J S Kheher, Justice U U Lalit, Justice Rohiton F Nariman, Justice Kurian Joseph and Justice Abdul Nazeer.

On 22nd August 2017, the five-judge constitutional bench of the apex court of India while entertaining a PIL filed by Shayara Bano, held with 3:2 majority the Triple Talaq or talaq-i-biddat unconstitutional and a violation of Article 14, 15 and 21 of the constitution[4].


Background

The character of the triple talaq or Talaq-i-Biddat was examined by the Allahabad High Court in Rahmat Ullah v. State of Uttar Pradesh[5]. The high court noticed that the triple talaq confers uncontrolled powers to husband and deters the dignity of Muslim women. Another case of A. Yousuf v. Sowramma[6], Justice Krishna Iyer has observed that the custom of triple talaq empowers arbitrary and unilateral powers to the Muslim man and does not confers with the Holy Quran.


Brief Facts

On 10th October 2015 Rizwan Ahmed, the husband of the petitioner Shayara bano enunciated ‘talaq’ three times and ceased the marriage of 15 years. The wife later filed a writ petition in the Supreme Court with the support of Bharatiya Muslim Mahila Andolan and Bebak Collective group. The petitioner in her prayer urged the apex court to declare the practice of triple talaq, polygamy and Nikah halala unconstitutional and a voilative of article 14, 15 and 21 of the constitution.


Issues

Is Triple Talaq or Talaq-i-Biddat an intrinsic element in Mohammedan Law?

Is it protected under Article 25 of the constitution?


Arguments

There were various contentions raised by both sides. Petitioner’s council, Senior Advocate AS Chadha argued that there is no mention or traces of the Talaq-i-Biddat anywhere in the holy book except acknowledged in some Hanafi schools of thought. The leaned council also contented the triple talaq is not in obedience with the definite edicts of the holy Quran.

Another argument by Indira Jaisingh Sr. Adv. That the practice of triple talaq is a violation of Article 14 of the constitution as it provides Muslim man with powers to affirm unilateral divorce and the wife does not have any control over such biased and unnatural condition which is derogatory to the morality and honor of the Muslim woman and lacks equality which is the crux of the Article 14.

Mr. Kapil Sibbal, senior council observed that the matter is of religious faith and the intervention of court is a violation of Article 25 of the constitution. He contended that the practice of Triple talaq is exercised from 1400 years by the Muslim and hence is not Un-Islamic.

Senior Advocate Salman Khurshid who acted as the amicus curiae and assisted the court in this matter considered triple talaq as a sinful act which cannot be consisted of any legal validity.


Judgment

The Hon’ble Supreme Court of India’s five judge bench decided by the majority of 3:2 that the triple talaq is unconstitutional. The majority opinion conveyed by Justice R F Nariman, Justice Kurian Joseph and Justice U U Lalit dissented with the view that the triple talaq is an integral part of Islam and stated that “if it is considered bad in the Holy Quran, it cannot be termed as good in the Shariat”. The majority also clarified that the idea of the 1937 Act[7] is to upheld Shariat as a rule of decision and abandon Anti-Shariat customs with respect to subjects specified in section 2[8] which includes talaq. Thus, the Triple Talaq is considered as a violative of Article 14, 15 and 21 of the Constitution.

The minority opinion was observed by CJ J S Kheher and Justice Abdul Nazeer. Their opinion stated that the religion is a subject not of logic but of faith. It is not open to a court to view from an equitable approach, over a custom which considered as an essential part of their religion. The two judges viewed that the matter of Triple talaq is of religion and faith and is secured under Article 25 of the constitution and cannot be nullified as the Constitution of India protects it.


Conclusion

The apex court by this historic judgment upheld the rights of Muslim woman who had to face numerous mental atrocities. The ministry of Law and Justice, govt. of India enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019[9] as the impact of the Shayara Bano case. The bill is to secure the rights of married Muslim women and to forbid divorce by pronouncing talaq[10]. The act declares Talaq as illegal and void[11] and penalizes a man who pronounces talaq to his wife with a term of imprisonment up to 3 years with fine[12].

Also the Article 44 of the Constitution which states a uniform civil code throughout the country is still abandoned even after more than 70 years of enactment of our constitution. The policy makers should approach for such a structure where there is one common law for every citizen irrespective of their religion which helps in eradicating the conflicts between various communities.

To conclude I would like to quote the first Prime Minister of India, Pt. Jawaharlal Nehru, “to check the condition of a country, one should check the condition of their women”, desperate measures are still required to uplift and shield the rights of women in this country.

Foot Notes:

[1] (2017) 9 SCC 1 [2] Law, Morality and Triple Talaq [3] Shayara Bano v. Union of India, (2017) 9 SCC 1 [4] Article 14, 15 and 21 of the Constitution of India [5] II (1994) DMC 64 [6] AIR 1971 Ker 261 [7] Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937 [8] Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937 [9] Act No. 20 of 2019 [10] Preamble, Muslim Women Protection Act, 2019 [11] Section 3 of the Muslim Women Protection Act, 2019 [12] Section 4 of the Muslim Women Protection Act, 2019