Table of Contents
Name of Appellant
Shayara Bano
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
Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench
HISTORY
Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in 2016, he divorced her by way of triple talaq without stating any reason. In return, she filed a writ petition in the Supreme Court challenging the constitutionality of talaq-e-biddat along with practices of polygamy and nikah halala as they infringe upon the fundamental rights of women (Article 14, 15, 21, 25). Women’s rights organizations like BEBAK collective and Bhartiya Muslim Mahila Andolan supported her. The opposition i.e. All India Muslim Personal law argued on the fact that Muslim law is not codified and hence not subject to judicial review and that divorce is a religious practice under Article 25 of the Constitution and thus protected.
The Court accepted the petition by Shyara Bano and formed a five-judge constitutional bench in 2017. The first hearing was held on May 11, 2017, and on 22nd August of the same year, it gave its decision on the case
WHAT WAS THE ISSUE
- Whether the practice of talaq-e-biddat (instantaneous triple talaq) an essential practice in Muslim personal law and protected under Article 25 of the Indian Constitution?
- Whether the triple talaq infringes on the fundamental rights guaranteed under the Constitution and is unconstitutional?
Arguments from the side of the petitioner
Mr. Amit Chadha, from the side of the petitioner, presented that triple talaq was never recognized in the Shariat Application Act, 1937, nor did the prophet encourage this type of talaq. This talaq emerged only as a custom and a wrong interpretation and does not have Quranic sanctions. He also stated various cases where questions were raised about this form of talaq.
He mentioned the case of Shamim Ara v. State of Uttar Pradesh (2002), where the Court gave guidelines for valid talaq. He urged the Court to ban this form of talaq on the ground that it violates Articles 14 and 15 and that if banned, the Dissolution of Muslim Marriage Act, 1939 would apply equally to the entire community irrespective of gender
Arguments from the side of the respondent
The respondents were represented by Mr. Kapil Sibal, who argued that the Shariat Act does not codify Muslim personal law but lays down rules of decision in matters of custom or usage to the contrary. He also stated that marriage in Muslim law is a private contract and so cannot be questioned by any legislation. He pointed out the definition of law in the Constitution that does not cover personal laws at all.
He went on to argue that under Article 25 of the Constitution, which empowers the parliament to make laws on social reforms related to secular activities, the court can assess its validity only if the parliament has made a law on the issue. On the question of discrimination faced by women, he said that women can register their marriage if they want, prohibit in Nikahnama the right of the husband to divorce by way of talaq-e-biddat, insist on a high dower or Mehr, and so on.
Judgment
The SC established a 5-Judge Constitution Bench on March 30, 2017, to hear the case. J.S. Khehar, the Chief Justice, and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer formed the Bench. The Bench considered the case from May 11 to May 19, 2017, and the judgment was handed down on August 22 of that same year. The majority of the 3:2 vote determined that the talaq-e-biddat custom was “manifestly arbitrary” and unlawful. Justice Nazeer and Chief Justice Khehar dissented on the grounds that the Right to Religion protected talaq-e-biddat and that Parliament should have drafted legislation to control the practice.
Triple Talaq was declared unconstitutional under Article 14 r/w article 13(1) of the Indian Constitution. The Court determined that the Muslim Personal Law (Shariat) Application Act, 1937 had penalized the practice as a matter of personal law. The punishment for committing this crime is imprisonment for up to 3 years.
The Court clarified that “an arbitrary action must include negation of equality” and found that the triple Talaq’sTalaq’s provision that “the marital tie can be broken capriciously with no attempt at reconciliation to preserve it” constitutes an arbitrary act that violates Article 14 of the Indian Constitution.
The SC found that the practice of Triple Talaq or Talaq-e-bidat is not protected by the exception outlined in Article 25 since it is not an essential practice of Islam.
The Court argued that even though the Hanafi School engages in it, doing so is wrong. Triple Talaq is against the fundamental principles of Islam, and since Shariah contradicts Quran, what is evil in theology cannot be good in legislation.
LAW RULES
INDIAN CONSTITUTION
ARTICLES – 14 AND 15
The petitioner in this case claimed that the practice of triple talaq, or instantaneous talaq, is violative of fundamental rights under the constitution. The foremost argument was given on the basis of Article 14 of the Constitution, which provides the right to equality to all its citizens, and Article 15, which prohibits any kind of discrimination among people on the basis of caste, creed, religion, race, gender, etc. The right of instantaneous talaq or triple talaq was only available to husbands who exercised it arbitrarily without any restrictions.
On the other hand, women had no right to exercise this option. According to the doctrine of eclipse and severability, if any law infringes upon the fundamental rights of any person enshrined in Part III of the Constitution, it must be struck down.
Article 25
The next argument relied on Article 25 that whether it is an essential practice under Muslim law and whether it must be protected under the Right to Religion. Article 25 guarantees its citizens the right to practice and propagate any religion of their choice. However, this right is not absolute and is subject to a number of restrictions:
Public order,
Morality,
Health etc.
During the discussion on Article 25, the Court observed that this form of talaq lacks the sanctity of the Quran and is nowhere mentioned in the holy book of Muslims, which also means that it is not an essential practice. Moreover, Islamic countries around the world themselves have abolished this form of talaq. The Court stated that “the practice which is considered to be evil in theology cannot be virtuous in the eyes of law and protected under the shelter of legislation.
Personal law v. Constitutional law
- On the surface, the Court’s decision was the appropriate one to make. Still, most judges’ methods appear different, which has led to a discussion on how to view personal law in a secular nation like India. It raises the issue of when it is appropriate for judges to render judgments regarding the legality of an uncodified practice like triple Talaq.
- Justice Khehar examines it entirely from the perspective of the constitution, determining whether it can be upheld as legal under that system rather than from the perspective of Islamic law. Justice Khehar responded to the opposition’s claim that personal law was not a state-enacted law and that only state-enacted law is subject to fundamental rights along similar lines. The main problem with the following argument is how a behavior authorized and enacted by the State, even though it is uncodified under personal law, does not fall under the purview of the sovereign’s law.
- Now that we have taken a closer look at Justice Niraman’s argument, we can see that he does believe that triple Talaq is “law in force” as defined by Article 13. With the very sound justification that since Talaq is granted broad jurisdiction by Section 211 of the Muslim Personal Law (Shariat) Act of 1937, it inevitably falls under the purview of state laws.
- Therefore, the obvious question in this situation is: Are any pertinent fundamental rights—specifically, Articles 14 and 15 that cover the right to equality—being violated, or may it be protected by a fundamental right like the right to religion, as stated in Article 25?
CONCLUSION
TALAQ! TALAQ! TALAQ A Muslim husband stated these three words to his wife, and their marriage ended. Don’t you think the instant triple talaq practice violates the woman’s fundamental rights guaranteed under the Indian constitution? According to Sharia Law, there are three different sorts of divorce, but only “talaq-e-biddat” is irrevocable. It is mainly practised by Muslim groups in India that adhere to the Hanafi School of Law. Muslim wives are not allowed to divorce their spouses under Islamic law, but husbands are. The Muslim Personal Law (Shariat Application Act, 1937) requires women to initiate a court procedure for divorce. Shayara Bano and Rizwan Ahmed had been married for 15 years.