SHAYARA BANO v. UNION OF INDIA AND ORS.

(TRIPLE TALAQ CASE)

Citation - (2017) 9 SCC 1, Judgement dated - 22/08/2017

Bench – Hon’ble Justice Jagdish Singh Khehar, Hon’ble Justice Kurian Joseph, Hon’ble
Justice Rohinton Fali Nariman, Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice S.
Abdul Nazeer
Petitioner/Appellant: Shayara Bano
Defendant/Respondent: Union Of India And Ors. and Ministry Of Women And Child
Development Secretary
Court: Supreme Court of India
Statutes Referred: - Constitution of India; Article 14, 15(1), 21, 21(a), 25, Code of
Criminal Procedure, 1973; Section 125.

Synopsis
According to Sharia Law, there are three types of divorce, but only "talaq-e-
biddat" is irrevocable. It is mostly practised by Muslim groups in India that follow
the Hanafi School of Law. Under Islamic law, Muslim wives are not permitted to
divorce their spouses, although husbands are. According to the Muslim Personal
Law (Shariat Application Act, 1937), women must commence a divorce
proceeding in court. Shayara Bano and Rizwan Ahmed had been married for
fifteen years.

Facts
1. Shayara Bano was married to Rizwan Ahmed for 15 years, and according to the
claims, she was subjected to dowry harassment and domestic violence.

2. In 2016, she was divorced through talaq-e-bidat, which initiated the writ petition
filed before the Supreme Court.

3. The petition stated that the practices of Nikah-Halala, triple Talaq and polygamy
under Muslim personal law were unconstitutional, illegal and violated the
 fundamental rights guaranteed under Art 14, 15, 21, and 25 of the Indian
Constitution.

4. The Union of India and women's rights groups, including the Bhartiya Muslim
Mahila Andolan (BMMA) and the Bebaak Collective, supported Ms Bano's
petition to declare these practices unconstitutional. They even sought the Court
to pronounce that the Fundamental Rights apply to personal law.

5. The All-India Muslim Personal Law Board (AIMPLB) has argued that since
Muslim personal law is not codified and is protected by Article 25 of the
Constitution, it is not subject to constitutional judicial review. Additionally, the
Court lacks jurisdiction to consider a constitutional challenge to Muslim personal
law.

6. The Court sought written responses from the Union of India and Shayara Bano,
several organisations working for women's rights, and the All-India Muslim
Personal Law Board (AIMPLB) on the challenges and issues surrounding
polygamy, Nikah-Halala, and talaq-e-biddat on 16 February 2017.

Issues
1. Does triple talaq violate any fundamental right given by the Indian Constitution?
2. Is talaq-e-biddat (instant Talaq) a vital practice of Islam?

Judgement
On March 30, 2017, the Supreme Court established a Constitution Bench of five
judges to consider the issue. J.S. Khehar, the Chief Justice, was joined by
Justices Kurian Joseph, R.F. Nariman, UU. Lalit, and Abdul Nazeer on the
bench. The Bench heard the case from 11 to 19 May 2017, and the decision was
issued on 22 August of the same year. The majority of the 3:2 voting concluded
that the talaq-e-biddat practice was "manifestly arbitrary" and illegal. Justice
Nazeer and Chief Justice Khehar dissented because the Right to Religion
protected talaq-e-biddat, and Parliament should have established legislation to
regulate the practice.

Triple talaq was deemed unlawful by Article 14 in conjunction with Article 13(1) of
the Indian constitution. The Court found that the Muslim Personal Law (Shariat)
 Application Act of 1937 punished the activity under personal law. This crime has
a maximum three-year jail sentence.

The Court clarified that "an arbitrary action must include negation of equality" and
determined that the triple Talaq's provision that "the marital tie can be broken
capriciously with no attempt at reconciliation to preserve it" constitutes an
arbitrary act in violation of Article 14 of the Indian Constitution.

The Supreme Court determined that the practice of Triple Talaq, also known as
Talaq-e-bidat, is not protected by the exception mentioned in Article 25 because
it is not a fundamental Islamic practice.

The Court contended that, while the Hanafi School engages in it, doing so is
wrong. Triple Talaq violates the core precepts of Islam, and because Shariah
contradicts the Quran, what is bad in theology cannot be good in regulation.

Impact of the judgement

Following the Shayara Bano decision, the Indian government passed the Muslim
Women (Protection of Rights on Marriage) Act, 2019, sometimes known as the
Triple Talaq Act. This act makes the practice of quick triple Talaq a legal crime. It
forbids a Muslim husband from pronouncing Talaq on his wife by any means,
whether verbal, written, or technological. Those who violate the act's terms face
imprisonment and a fine.

As a result, the Triple Talaq Act was enacted as a legislative response to the
Supreme Court's decision in the Shayara Bano case, which sought to give
Muslim women with further legal protection by specifically criminalising and
prohibiting the practice of triple Talaq.

Critical Analysis
The lawsuit was decided in favour of Shyara Bano. According to me, the judges'
judgement was completely correct. The usage of triple talaq deprived individuals
of their constitutionally guaranteed rights. Triple talaq was not even supported by
Sharia law or the Quran. The elimination of triple talaq was a significant step
taken by our honourable judges. The practice of triple talaq damaged many
articles of the constitution. Triple talaq has been prohibited in India, and those
who practise it will face the repercussions. The Triple Talaq Law is devastating
 for Muslim women. "It has made things more difficult for Muslim women," tweeted
the All India Muslim Personal Law Board.

First, divorced Muslim women outnumber divorced Muslim males,

notwithstanding the decreased shame linked to remarriage.

Second, Muslim women are more likely to be poor and have lower rates of formal
labour market involvement. If they are not provided for, many people will fall into
terrible poverty. Third, the obligation to remarry with the same husband if the
triple talak is at fault may deter women from exercising that choice. Finally,
neither partner should be able to get a unilateral divorce.

An survey of five states having a higher number of Muslims in the population

than the Indian average of 14% revealed that Muslim women divorced at a far
higher rate than women of all religions except J and K. For years, feminists,
particularly Muslim feminists, have advocated for reforms to Muslim personal
laws, including the abolition of the triple talak. Parsi and Jain women are claimed
to have received increased legal protection. But that is hardly radical feminism,
because grooming is also an issue for non-Muslim women. A Muslim marriage is
a civil contract between two adults, hence the procedure for dissolution must also
be civil.

In conclusion, the gender gap in Muslim divorce rates is a stronger reason for
removing the triple talak than the difference between Muslim and Hindu women.
This, coupled with the viewpoint of the Bharatiya Muslim Mahila Andolan and
1,000 registered Shayara Bano followers, should be considered while reaching a
decision. This law strengthens human rights and promotes gender equality. upon
the enactment of this law, women and their children will get an allowance, or a
defined sum, upon divorce.

Conclusion
Undoubtedly, the landmark verdict in the Shayara Bano case is a step towards
equality, laying the groundwork for future social and personal legislation
improvements. This verdict in the Shayara Bano case was a step towards
secularism, and it also addressed the minority. It would have a huge impact on
women's rights and gender equality in India, despite the fact that gender justice
was not the primary objective. This ruling is expected to be seen objectively and
will assist Muslim women in living better, safer lives as required by state
legislation.
References
- https://lawbhoomi.com/shayara-bano-vs-union-of-india-2017-9-scc-1/
- https://www.legallore.info/post/shayara-bano-v-union-of-india-and-ors-
triple-talaq-case
- https://blog.finology.in/Legal-news/shayara-bano-case