Muslim Law, also known as Mohemmadan Law, governs both Sunni and Shia Muslims in India. Unlike Hindu law, it is not codified and relies on interpretations, which can complicate identifying real-life issues. A notable example is the practice of “triple talaq” or “talaq-e-biddat,” where a Muslim man can divorce his wife instantly by repeating “talaq” three times in one sitting. Unlike the other forms of divorce—talaq-e-Hasan and talaq-e-Ahsan—that provide a chance for reconciliation, talaq-e-biddat is irrevocable. If the husband wishes to remarry his former wife, she must first marry another man, who must then divorce her voluntarily before she can remarry her ex-husband, a process known as Nikah Halala, which adds another layer of hardship for women.
The major impact is evident on women, whose lives can be upended in moments due to this controversial practice. This tradition has shockingly subjected Muslim women to abuse and worsened their socio-economic conditions, as many are financially vulnerable. Husbands can implement this practice at will, leaving women without any control over the situation. Shayara Bano, a victim of this instant divorce, chose not to remain silent. Her courageous fight resulted in significant changes not only in Muslim personal law but also in the relationship between the Constitution and personal laws in India.
DETAILS OF THE CASE
• Name of the case:-
Shayara Bano v. Union of India
• Citation:-
AIR 2017 9 SCC 1 (SC)
• Name of Appellant:-
Shayara Bano and others
• Name of respondent
Union of India, All India Muslim Personal Law Board and Rizwan Ahmed
• Court:-
The Supreme Court of India
• Date of judgment
22nd August 2017
• Bench:-
Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench.
• Ratio:-
3:2
Let's know firstly what is triple talaq
Triple Talaq is a practice where a Muslim man can divorce his wife by saying "Talaq" three times. With the rise of technology, this practice has been misused, as men can now issue divorce through voice notes, WhatsApp messages, and other digital means. This misuse highlights the vulnerability of women, who face increased risks due to this unilateral and arbitrary method of divorce. The practice, which intersects with gender and community issues, often leaves Muslim women exposed to abuse and economic hardship, exacerbating their fears and leading to many instances of marital abuse going unreported.
FACTS OF THE CASE
• Shayara Bano, married to Rizwan Ahmed for 15 years, was divorced by triple talaq in 2016.
• She challenged the constitutionality of talaq-e-biddat, polygamy, and nikah halala in a Supreme Court writ petition.
• Bano argued that these practices infringe on fundamental rights (Articles 14, 15, 21, 25), supported by organizations like BEBAK Collective and Bhartiya Muslim Mahila Andolan.
• The opposition, All India Muslim Personal Law Board, claimed Muslim law is not codified and thus not subject to judicial review, and that divorce is protected under Article 25 as a religious practice.
• The Supreme Court accepted Bano’s petition and set up a five-judge bench in 2017.
• The first hearing was on May 11, 2017, and the verdict was delivered on August 22, 2017
ISSUES RAISED
Issues in the Case:
1. Whether the practice of talaq-e-bidat, an essential practice of Islam?
2. And whether this practice of Triple Talaq violates fundamental rights i.e., Articles 14,15,21, and 25 of the Indian constitution?
ARGUMENTS OF THE CASE
BY PETITIONER
- Mr. Amith Chadha, advocate for Shayara Bano, argued that triple talaq is not recognized under The Muslim Personal Law (Shariat) Application Act of 1937.
- He noted that various High Courts and the Supreme Court have restricted the unilateral divorce power of Muslim men and criticized triple talaq for lacking Quranic sanction.
- Chadha urged the court to strike down triple talaq, arguing it violates Articles 14 and 15 of the Constitution by allowing an unregulated divorce power.
- He also argued that the contested practices are not essential to Islam, as other Islamic countries have banned them.
- Mr. Anand Grover, representing the Bharatiya Muslim Mahila Andolan (BMMA), explained that there are three types of talaq: talaq ahsan and talaq hasan, which are recognized by the Quran and Hadith, and talaq-e-bidat, which is not.
- Ms. Indira Jaising, Sr. Adv., representing the Intervenors, argued that personal laws, whether codified or un-codified, must comply with Article 13 of the Indian Constitution and be invalid if they infringe upon fundamental rights.
- She also stated that unilateral divorces without judicial oversight violate Articles 14, 15, and 21 of the Constitution and that marriage in Islam, being a contract, should not be dissolved unilaterally.
- Mr. Anand Grover, Sr. Adv., also pointed out that the All India Muslim Personal Law Board (AIMPLB) does not represent all Hanafi Muslims' views and presented an interpretation of Hadith suggesting that triple talaq should be staggered.
BY RESPONDENT
- Mr. Kapil Sibal, Sr. Advocate for the AIMPL, asserted that the central issue is patriarchy within all religions, not just triple talaq.
- He argued that personal laws are excluded from the definition of law under Article 13, as they are explicitly listed in the Concurrent List of the Seventh Schedule, indicating the framers' intent to exclude them.
- Sibal highlighted the need to protect minority rights in a predominantly Hindu state and noted that jurisdictions abolishing triple talaq typically have Muslim majorities, suggesting India should be sensitive to the minority status of Muslims before enacting legislation.
- He mentioned that while the Quran does not explicitly prohibit triple talaq, it also does not mandate it, and argued that understanding Sharia requires considering the Quran, Hadith, and scholarly interpretations.
- Sibal claimed that triple talaq might not discriminate against Muslim women and could provide immediate relief from difficult marriages. He proposed four protective measures for women: registering marriages under the Special Marriage Act, 1954; including clauses in the Nikahnama to prevent triple talaq; delegating the right to talaq to the woman; or negotiating a high Mehr amount to deter its use.
- He concluded by asserting that the Hanafi school’s right to practice religion is protected under Article 26 of the Constitution.
- Mr. Goel contended that the constitutional validity of triple talaq is not relevant since it involves a private matter between individuals without state action.
- He also argued that, as marriage is a private contract under Islamic Law, it cannot be altered by state legislation.
- Mr. Giri, Sr. Advocate, cited Quranic verses to argue that marriage and divorce are religious matters protected under Articles 25 and 26 of the Constitution.
JUDGEMENT
- On August 22, 2017, the Supreme Court ruled in a 3:2 majority that the practice of Triple Talaq was unconstitutional.
- The 5-judge bench included members from different faiths: Chief Justice JS Khehar (Sikh), Justices Kurian Joseph (Christian), RF Nariman (Parsi), UU Lalit (Hindu), and Abdul Nazeer (Muslim).
- Justices Nariman and Lalit argued that Talaq-e-Bidat, a form of Triple Talaq, is governed by the Muslim Personal Law (Shariat) Application Act of 1937 and deemed unconstitutional due to its arbitrary nature.
- Justice Kurian Joseph contended that Triple Talaq contradicts the Quran and thus lacks legal validity, asserting that what is deemed unacceptable in the Quran should also be unacceptable in law.
- The dissenting opinion by Chief Justice Khehar and Justice Abdul Nazeer argued that Triple Talaq is a core religious practice in Islam and its widespread acceptance among Muslims justifies its constitutionality.
- They maintained that if a practice is considered an essential religious element and not arbitrary, it should be protected under Article 25 of the Constitution, which safeguards essential religious practices.
- Justice Khehar believed that Triple Talaq did not violate any of the exceptions listed in Article 25(1) since it was not based on state legislative action.
STEPS TAKEN BY GOVERNMENT
- The Parliament of India enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, to address and reduce triple talaq after a 2017 court ruling.
- Section 3 of the Act declares Talaq-e-Biddat (triple talaq) as void and illegal.
- Section 4 prescribes a punishment of up to 3 years in prison and a fine for those who attempt to use triple talaq.
- Section 5 entitles the wife to financial support for herself and her children from her husband.
- Section 7 classifies triple talaq as a cognizable and compoundable offence, with bail only granted if the court finds reasonable grounds.
CONCLUSION
Despite the Supreme Court's 3:2 ruling declaring triple talaq unconstitutional, ambiguity remains regarding the reasoning provided by the judges. Justices Nariman, Lalit, and Joseph deemed triple talaq both un-Islamic and unconstitutional. Although the law now prohibits this practice and new legislation has been enacted by the Indian government to address the issue, the Shayara Bano case has set a precedent for future personal law and social reforms. This landmark decision promotes secularism by addressing the minority perspective effectively, and while its primary focus wasn't on gender justice, it is expected to positively impact women's rights and gender equality in India. The ruling prevents husbands from unilaterally ending marriages, reinforcing that equality is more than a mere concept. Nonetheless, there remains concern about the minority judges' opinions.
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