Shayara Bano vs. Union of India

Subject: PRACTICE OF ‘TALAQ-E-BIDAT’- TRIPLE TALAQ SET ASIDE 

• The petitioner, Shayara Bano, had been married to her husband, Rizwan Ahmed, for 15 years. In 2016, he divorced her through instant triple talaq (talaq -e bidat), i.e., a practice that allows a man to divorce his wife by saying the word “talaq” three times in one sitting without his wife’s consent.
• Shayara Bano filed a Writ petition in the Supreme Court pleading to declare three practices talaq-e-biddat, polygamy, and nikah-halala as unconstitutional as they violate the fundamental rights of women enshrined in Articles 14, 15, 21, and 25 of the Indian Constitution.
• Nikah Halala means a practice in which a divorced woman who wishes to remarry her husband must marry and get a divorce from a second husband before remarrying her first husband while polygamy means the practice of Muslim men having over one wife.
• On February 16th, 2017, the Court requested written submissions from Shayara Bano, the Union of India, various women’s rights organisations, and the All-India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-biddat, nikah-halala, and polygamy.
• The Union of India supported the petitioner’s claim that these practices are unconstitutional and women’s rights organisations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA).
• However, the AIMPLB argued that uncodified Muslim personal law is not subject to constitutional judicial review, and that these are essential Islamic practices protected by Article 25 of the Constitution.

1. Whether the practice of Triple Talaq is constitutional?
2. Whether the practice of Triple Talaq is an essential religious practice of Islam?

Keeping in mind, that this opportunity had presented itself, so to say, to assuage the cause of Muslim women, it was felt, that the opportunity should not be lost. The Court was satisfied that that would not be the rightful course to tread. The court cannot nullify and declare as unacceptable in law what the constitution decrees for us, not only to protect, but also to enforce. The authority to safeguard and compel compliance is vested under a special jurisdiction in constitutional Courts. Accepting petitioners' prayers, would be in clear transgression of the Constitutional mandate contained in Art. 25.

The Court arrived at the conclusion that the legal challenge raised at the behest of the petitioners must fail on the judicial front. The question still remained, whether this was a fit case for the court to exercise its jurisdiction under Art. 142 in the matter. The reason for the court to probe the possibility of exercising its jurisdiction under Art. 142, arose only for one simple reason, that all concerned were unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’ was gender discriminatory.

The Court was satisfied that this was a case which presented a situation where the Court should exercise its discretion to issue appropriate directions under Art. 142 of the Constitution. The court directed the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-bidat’. Court implored the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. Court also beseeched different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

Till such time as legislation in the matter is considered, the court was satisfied in injuncting Muslim husbands, from pronouncing; talaq-e-biddat’ as a means for serving their matrimonial relationship. The instant injunction shall, in the first instance, be operative for a period of six months. If the legislative process commenced before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-bidat- as one, or alternatively, if it is decided that the practice of ‘talaq-e-bidat’ be done away with altogether, the injunction would continue, till legislation was finally enacted. failing which, the injunction shall cease to operate.

The Constitution Bench of the Supreme Court, by a 3:2 majority, set aside and declared the practice of instantaneous Triple Talaq aur Talaq-e-bidat to be unconstitutional under Article 14 read with Article 13(1) of the Indian Constitution. In Shayra Bano vs UOI, the Court held that the Muslim Personal Law (Shariat) Application Act of 1937 had sanctioned the practice as a matter of personal law.

The Court clarified that “…an arbitrary action must involve negation of equality” and determined that, because triple talaq states that “…the marital tie can be broken capriciously with no attempt at reconciliation to save it”, this arbitrariness violates Article 14 of Constitution of India.

The apex court further held in Shayra Bano v UOI that the Muslim Personal Law (Shariat) Application Act, 1937 is void where it recognizes and enforces triple talaq, citing Article 13(1), which states that all laws in force immediately before the commencement of the current Constitution (including the 1937 Act) are void where they are inconsistent with the fundamental rights enshrined in the Constitution.

The SC ruled that the practice of Talaq-e-bidat is not protected by the exception set out in Article 25, as the court determined that it is not an essential component of the Islamic religion.

The court justified its position by stating that, while the Hanafi School practices it, it is sinful in it. Triple Talaq contradicts the basic tenets of the Quran, and whatever contradicts Quran contradicts Shariat; thus, what is bad in theology cannot be good in law. 

The landmark decision in Shayra Bano case is unquestionably a step toward equality, and it has provided a foundation for future personal law and social amendments. This decision in Shayara Bano v UOI also dealt with the minority in a very viable manner, which is a step toward secularism.

Although the primary focus was not gender justice, it will have significant positive implications for advancing women’s rights and gender equality in India. It is expected that this judgement will be viewed objectively and will assist Muslim women in living a better and more secure life as guaranteed by the law of the land.