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SHAYARA BANO V. UNION OF INDIA AND OTHERS, (2017) 9 SCC 1

INTRODUCTION

Shayara Bano v. Union of India and Others is a landmark case dealing with the constitutional validity of “Triple Talaq” of “Talaq-e-Biddat” under Muslim Personal Law in India. “As the name suggests in this form of divorce, a Muslim man can instantly divorce his wife after repeating the word ‘talaq’ in one sitting, without any state intervention.”[1] The Hanafi School has for many centuries supported Triple Talaq practice among the Sunni Muslims in India. This case was not the first where the Triple Talaq practice was questioned before a Court. This issue has previously also been highlighted in a number of cases as well. However, this was the first time that a five-judge constitution bench examined the question of the constitutional validity of Triple Talaq.

FACTS

Shayara Bano, an Indian citizen and a Muslim by religion got married to Rizwan Ahmed in April 2001. At the time of her marriage, her father, a government employee, made special arrangements for the marriage beyond his capacity. Soon after her marriage, her husband and in-laws subjected her to domestic violence, physical torture and demanded additional dowry from her family. She was also kept enclosed in a room with an empty stomach for days. Her in-laws also gave her such medicines because of which her memory diminished and because of which she remained unconscious for long hours. Because of her husband’s atrocious behaviour she was forced to stay at her parent’s home from April 10, 2015. Finally, in October 2015, she was sent a divorce note containing a pronouncement of triple talaq by her husband. She had two children from the marriage and her husband had their custody. She then filed a “writ petition under Article 32 of the Constitution of India praying for a direction against the Union of India and others seeking a writ or order or direction in the nature of mandamus declaring the practices of talaq-i-bidat, nikah halala, and polygamy under Muslim personal laws as illegal and unconstitutional” for being in violation of Articles 14, 15, 21 and 25 of the Indian Constitution. Thereafter, taking the matter into consideration, the Supreme Court on February 16, 2017, asked Shayara Bano, the Union of India, women’s rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give their written submissions on these issues. The Union of India and two other organisations supported Shayara Bano’s plea and requested the court to declare these practices unconstitutional. Whereas the AIMPLB and the Jamiat Ulema-e-Hind contented that the uncodified part of ‘Muslim personal law’ cannot be subjected to judicial review and that Article 25 of the Constitution provides protection to these essential practices of Islam. The Bhartiya Muslim Mahila Andolan and Majlis and a few women’s rights organisations argued that in presence of previous judicial decisions in this regard, the court should not examine the constitutional validity of Triple Talaq, and should emphasise the existing legal remedies. The Supreme Court after accepting Shayara Bano’s petition formed a five-judge constitutional bench on March 30, 2017.

ISSUES RAISED

The Apex Court, after receiving all the written statements, categorised them into the following two main issues:

  1. Whether the practice of Talaq-i-bidat (Triple Talaq) is an essential religious practice of Islam?
  2. Whether the practice of Triple Talaq is violative of any fundamental right enshrined under the Indian Constitution?

The issue of whether the Triple Talaq practice is essential to Islamic religious practice arose because the Court will be able to make changes to it only if this practice is not an essential religious practice and if this is an important religious practice then the Court will not be able to challenge or modify it.

CONTENTIONS:

Contentions of petitioner:

In this case, the Advocate representing the petitioner Shayara Bano began by referring to cases wherein the Supreme Court has held that laws relating to “marriage and succession are not a part of religion.” One such case which he referred to was the case of Khursheed Ahmad Khan v. State of Uttar Pradesh and Others[2], where the Supreme Court held that “practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of a religion, since the practice does not acquire the sanction of religion merely because it is permitted.”

He further contended that the practice of “talaq-e-bidat” or Triple Tlaq “without proper attempt at reconciliation violates the basic right to live with dignity of every Muslim woman.” Such discrimination based on gender is atrocious in the progressive times of the 21st century.  The petitioner side mentioned that according to scholars, “talaq-e-bidat is not a form of divorce recognised in the Holy Quran as the Quran provides for reconsideration and reconciliation before recognising divorce as irrevocable.” He cited various High Court and Supreme Court judgements which said that “talaq-e-bidat” does not have the sanction of the Holy Quran.

He referred to the case of Must. Rukia Khatun v. Abdul Khalique Laskar[3], where it was stated that “the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his.”

Similarly, he submitted that in Shamin Ara v. State of Uttar Pradesh & Another[4], the Supreme Court observed, “talaq must be for a reasonable cause and be preceded by attempts at a reconciliation between the husband and the wife.” 

The petitioner side further contended that the Muslim Personal Law (Shariat) Application Act, 1937, by providing that “the Muslim personal law applies in matrimonial matters where the parties are Muslims, conveys a wrong impression that this sinful form of talaq has the legal sanction, which is awfully harmful to the fundamental rights of the married Muslim women and violates Article 14, 15, 21 and 25 of the Constitution.” They contended that “the assumptions and beliefs upon which the talaq-e-bidat form of divorce is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution and that this form of divorce has been declared to be a spiritual offence in the Holy Quran and giving recognition to that form interferes with the Muslim women’s right to profess and practice her religion and is, thus, violative of Articles 14, 15, 21 and 25 of the Constitution.”

The Petitioner side concluded their contention by submitting that the 1937 Act, which is subject to the Constitution of India, is invalid in so far as it seeks to recognise the “talaq-e-bidat” practice.

Contentions of respondent:

The respondent side in the present case began by contending that Muslim Personal Laws cannot be tested as being in violation of Part III of the Constitution and that the phrase “Laws in force” under Article 13(1) of the Constitution does not include ‘Personal Law’. And to support this contention they referred to various Supreme Court and High Court judgements.

The Advocate for the respondent’s side submitted that the Hon’ble Court in Krishna Singh v. Mathura Athir[5], has held that “the Part III of the Constitution does not touch upon the personal laws of the parties and that the High Court in applying the personal laws of the parties could not introduce its own concepts of modern times but should enforce the law as derived from recognised and authoritative sources.”

Similarly, the case of State of Bombay v. Narasu Appa Mali[6] has been referred where it had observed that “the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution as they were aware that these personal laws needed to be reformed in many material particulars and they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and accordingly they did not intend to include these personal laws within the definition of the expression ‘laws in force’.”

Additionally, the respondent side contended that the validity of ‘personal laws’ cannot be ascertained on the ground that the legislature or any other competent authority passed or made them. Their fundamental sources are in fact “their scriptural texts”. They further contended that the Mohammedan Law is basically founded on Holy Quran and therefore it cannot fall under the expression “laws in force” under Article 13 of the Indian Constitution.

The respondent side, therefore, concluded their arguments by submitting that since Part III does not deal with the personal laws, the Supreme Court, therefore, cannot consider the constitutional validity of the principle of Muslim Personal Law relating to Triple Talaq.

RATIONALE

The five-judge bench of the Supreme Court on 22 August, 2017, set aside the practice of “Talaq-e-Bidat” – “Triple Talaq”, by a 3:2 majority. The interesting thing relating to the court order was that the five-judge bench gave three different lines of opinion. Former Chief Justice of India Jagdish Singh Khehar and Justice S. Abdul Nazeer delivered the minority opinion. Justice Rohinton Nariman and Justice U.U. Lalit delivered the majority opinion along with Justice K.M. Joseph took an entirely different approach to land at the same decision. The following is a brief of their opinions:

According to the minority opinion held by CJI Jagdish Singh Khehar and Justice S. Abdul Nazeer the practice of triple Talaq is widespread in the Muslim world, having the “sanction of the religious denomination practising it” and has been prevalent for almost 1400 years, hence there is no doubt that it is an essential religious practice of their Personal Law. Further, they examined if Triple Talaq satisfies restraints provided under Article 25 and thereafter concluded that it breaches none. Furthermore, in their view, Triple Talaq cannot also be seen as violative of Part III of the Indian Constitution, as the Muslim Personal Law does not base itself on “any State legislative action”.Triple Talaq is therefore protected constitutionally.

Justice Khehar and Justice Nazeer were of the opinion that “the uncodified parts of the Muslim personal law cannot be tested for conformity with the Fundamental Rights and that the 1937 Act, did not bring the uncodified part within the state’s jurisdiction, and therefore, it did not come within the expression ‘laws in force’ in Article 13 of the Indian Constitution.”

They concluded that changes in personal laws can be brought about only by state legislation and that also within the permissible limits of Article 25. The judges, therefore, denied the petition and directed the parliament to promulgate a legislation in six months, during which the judiciary would put a stay on triple Talaq practice.

Justice Rohinton Nariman and Justice U.U. Lalit were of the opinion that the practice of Triple Talaq is not protected by Article 25 since this practice is not an essential or integral religious practice, as according to them, “merely because a practice is widespread and has continued and practised for long by an overwhelming majority of the denomination concerned, as in the present case, that by itself cannot make it an essential religious practice, an essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion.”

They opined that “The practice of Triple Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.” Triple Talaq should, therefore, be held to be in violation of Article 14 of our Constitution (which falls under Part III). Further, they were of the view that “the 1937 Act, to the extent that it seeks to recognise and enforce Triple Talaq, is within the ambit of the expression ‘laws in force’ in Article 13(1) of the Constitution and must, therefore, be struck down as being void.” Moreover, according to their view, “it cannot be said that there is no ratio decidendi in Shamin Ara v. State of Uttar Pradesh and Another[7], as itmade a specific finding as to how Triple Talaq does not adhere to Quranic principles and therefore is bad in both theology and law. They, therefore, declared the practice of Triple Talaq illegal and set aside.”

Justice Kurrian Joseph adopted a position different from the above two. He, in his concurring opinion, noted that the Act of 1937 does not regulate Triple Talaq and therefore, the Act cannot be examined for being in conformity with Article 14 of the Constitution. He also observed that triple talaq is against the Quran. He wrote, “What is held to be bad in the holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. Thus Triple Talaq being bad in theology after enactment of the 1937 Act, lacks legal sanctity.”

INFERENCE

The 372-page ruling where two judges on the bench favoured to uphold the validity of talaq-e-bidat or Triple Talaq, finally set aside this practice with the other three judges declaring it unconstitutional. The court, therefore, directed the central government to draft a legislation within six months in this regard.

The Central Government, therefore, came up with the Muslim Women (Protection of Rights on Marriage) Act, 2019 which became law on 31 July, 2019. The Act declared “Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, to be void and illegal.”[8] And the Act makes Triple Talaq a cognisable offence under which “Any Muslim husband who pronounces Triple Talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”[9]

The judgement is a great step forward in abolishing gender-based discrimination however, “according to constitutional experts legal reasoning of the judges fell short of upholding personal rights over religious laws.”[10]

Name: Chandni

College Name: Army Institute of Law, Mohali

Course: B.A.LL.B. 1st Year


[1] Triple talaq: How Indian Muslim women fought, and won, the divorce battle, BBC, (Aug. 22, 2017), https://www.bbc.com/news/world-asia-india-40484276. 

[2] Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439.

[3] Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375 (DB).

[4] Shamin Ara v. State of Uttar Pradesh & Another, (2002) 7 SCC 518.

[5] Krishna Singh v. Mathura Athir, (1981) 3 SCC 689.

[6] State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.

[7] Shamin Ara v. State of Uttar Pradesh and Another, (2002) 7 SCC 518.

[8] The Muslim Women (Protection of Rights on Marriage) Act, 2019, § 3, No. 20, Acts of Parliament, 2019 (India).

[9] The Muslim Women (Protection of Rights on Marriage) Act, 2019, § 4, No. 20, Acts of Parliament, 2019 (India).

[10] India bans a muslim practice of instant divorce, THE ECONOMIST (Aug. 26, 2017), https://www.economist.com/asia/2017/08/24/india-bans-a-muslim-practice-of-instant-divorce.

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