Case Analysis Of : Shayara Bano

v/s. Union Of India AIR 2017 9

SCC1 (SC)

AMITAVA DAS
CALCUTTA UNIVERSITY DEPT OF LAW, HAZRA CAMPUS
16 March 2024

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INTRODUCTION :
Muslim Law, or Mohemmadan Law, is another personal law besides Hindu law which
governs both the sects of Muslims in India (Sunnis and Shias). However, since it is not
codified and hence subject to interpretations, it is hard to identify the problems faced by
many in reality. The present case is one such example that brings out the cruelty towards
women in the name of divorce, especially “triple talaq” or “talaq-e-biddat”. As the
name suggests, a Muslim man in this form of divorce can instantly divorce his wife by
pronouncing “talaq” three times in one sitting.
The two other forms of divorce, talaq-e-Hasan, and talaq-e-
Ahsan, at least give some time to the husband to repent and come back, but this type,
once pronounced, cannot be revoked and taken back. If the husband realises his mistake,
repents his conduct and wants to marry the same girl again, he cannot do so without
following the procedure of Nikah Halala wherein if the husband wants to remarry his
wife again after the divorce, the woman first has to marry another man and then her
current husband would initiate divorce voluntarily after which she has to observe an iddat
period and then only she can marry her former husband. This is again another cruelty in
itself faced by women.
The major impact is seen on women, whose lives are turned
upside down in just a few seconds. This controversial custom has shockingly left Muslim
women prone to abuse and in a morbid state, especially harming their socio-economic
status as most of the women are not financially strong. Husbands are at ease as they can
initiate it whenever they wish to do so, and women, on the other hand, do not have a say
in this.

Shayara Bano case led to the ban of the Muslim practice of Triple Talaq. It is a process of
divorce under the "Sharia Law", where a Muslim man can instantly divorce his wife by
pronouncing the word "TALAQ" three times, without any state intervention.

FACTS OF THE CASE :

• Shayara Bano's marriage with Rizwan Ahmed was for 15 years. She was one of
those women who were survivors of domestic violence and dowry harassment.

• In 2016, she had been unilaterally divorced through instantaneous triple talaq.

• A writ petition was then filed by her before the Supreme Court.

• The petition stated a declaration that "the practices of Instant Triple Talaq, polygamy
and Nikah Halala in Muslim personal law were illegal, unconstitutional, and in
violation of several fundamental rights i.e., Articles ,
14 (equality before law),
15 (non-discrimination),
21 (right to life with dignity) and

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 25 (right to freedom of conscience and religion) of the Indian Constitution.”

• The Union of India as well as the women's rights organizations like the Bebaak
Collective and the Bhartiya Muslim Mahila Andolan (BMMA) also supported
Ms. Bano's plea that these practices should be held unconstitutional. They even
urged the court to declare that personal law was subject to the Fundamental
Rights.

• The All-India Muslim Personal Law Board (AIMPLB) has argued that
uncodified Muslim personal law is not subject to constitutional judicial review
and that the Court did not have jurisdiction to entertain a constitutional challenge
to Muslim personal law as these are essential practices of the Islamic religion and
are protected under Article 25 of the Constitution.

• On 16th February 2017, Shayara Bano, the Union of India, various women's rights
bodies, and the All-India Muslim Personal Law Board (AIMPLB) were asked
by the court to introduce written submissions on the problems and issues of talaq-
e- bidat, nikah-halala, and polygamy.

ISSUES RAISED :
• 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 FORM THE SIDE OF THE PETITIONER :

• Shayara Bano's advocate Mr. Amith Chadha began by arguing that triple talaq is not a
form of divorce recognized by The Muslim Personal Law (Shariat) Application Act,
1937. He also pointed out that several High Courts and Supreme Court have restricted
this unilateral power of Muslim men to be able to divorce Muslim women and even
criticized the practice of triple talaq as it does not have any Quranic sanction.

• He urged the court to "strike down the practice of triple talaq as it allows an un-codified
power to Muslim men to divorce, violating Articles 14 and 15 of the Constitution.”

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• Next, Mr. Amith Chadha argued that "the practices challenged in this case are not
essential practices of Islam as it is evident from legislations in other Islamic countries,
that have prohibited such practices.”

• Mr. Anand Grover, representing the Bharatiya Muslim Mahila Andolan (BMMA)
also clarified that "Talaq itself is of three types: talaq ahsan and talaq hasan, both of
which are approved and recognized by the Quran and Hadith while the third type that is
talaq-e-bidat, is neither recognized nor approved by the Quran nor the Hadith.

• Ms. Indira Jaising, Sr. Adv. who was representing the Intervenors, argued that "personal
laws - whether codified or un-codified - regardless of the community, are subject to
Article 13 of the Indian Constitution and therefore void to the extent that they violate
fundamental rights.”

• She also concluded by advancing the general proposition that "any divorce which is
unilateral and without judicial oversight violates Articles 14, 15 and 21 of the Indian
Constitution. Also, the general Islamic concept of marriage among Muslims is
admittedly a contract it cannot be dissolved unilaterally.”

• Mr. Anand Grover, Sr. Adv, started by pointing out that "the AIMPLB is a private body
that isn't representative of the views of all Hanafi Muslims. He asserted that there are
differences in the Hadith texts and read an interpretation of Hadith which prescribed
that triple talaq should be staggered."

ARGUMENTS FROM THE SIDE OF THE RESPONDENT :

• Mr. Kapil Sibal, Sr. Advocate, representing the All India Muslim Personal Law
Board (AIMPL) began by emphasizing that the core underlying issue before the court
is that of patriarchy which pervades every religion and not the issue of triple talaq

• Mr. Sibal referred to the Constituent Assembly Debates to argue that the definition of
law under Article 13 does not include personal laws. He suggested that the explicit
mention of personal laws in the Concurrent List (List III of the Seventh Schedule)
and its absence in Article 13 demonstrates the Constitution makers' intention to
exclude personal laws.

• Mr. Sibal then sought to place this case in a historical and social context. He noted that
it is important to protect minority rights in a Hindu majority state. Most jurisdictions
that passed legislation abolishing triple talaq have Muslim majorities. Hence, India

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 must be sensitive to the Muslim community's minority status before legislation is
proposed.

• Mr. Sibal responded that while the Quran is silent on triple talaq, there is nothing in it
that prohibits triple talaq. Moreover, petitioners' view that the Quran alone is the source
for understanding talaq is incorrect as the Sharia is based on the Quran, Hadith, and
interpretations of scholars.

• Mr. Sibal concluded arguments by claiming that Muslim women are not discriminated
against by the triple talaq rule and may even benefit from immediate relief from bad
marriages. He proposed four options for a Muslim woman to protect herself from a
discriminatory use of the triple talaq: first, she may register the marriage under the
Special Marriage Act, 1954; second, she can insert conditions into the Nikahnama to
prohibit her husband from exercising a triple talaq; thirdly, she delegates the right to
talaq to herself and finally, insist on the payment of a high Mehr amount to deter the
exercise of triple talaq.

• He concluded arguments by emphasizing that the Hanafi school is a religious

denomination and that every denomination's right to practice religion is protected
under Article 26 of the Constitution.

• Mr. Goel argued that the question of assessing the constitutional validity of triple talaq
does not arise as the divorce is between two private individuals and there is no state
action involved.

• Moreover, since marriage is a private contract under Islamic Law, no State legislation
can change it.

• Mr. Giri, Sr. Advocate, cited verses from the Quran to argue that marriage and divorce
have sources in religious scriptures and thus are essential matters of religion protected
under Articles 25 and 26 of the Constitution.

JUDGEMENT :
The Supreme Court laid down its judgment on August 22, 2017 in a 3:2 majority, holding
the practice of Triple Talaq unconstitutional. The 5-judge bench that heard the
controversial triple talaq case in 2017 was made up of different faith members.
The five judges were from five different communities
i.e.,

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Chief Justice JS Khehar (a Sikh),
Justices Kurian Joseph (a Christian),
RF Nariman (a Parsi),
UU Lalit (a Hindu), and
Abdul Nazeer (a Muslim).

Justice Rohinton Nariman and Uday Lalit held that talaq-e-bidat is regulated by the
Muslim personal law (Shariat) application 8, 1937. They held the practice is
unconstitutional because it is arbitrary.
Justice Kurian Joseph, on the other hand, noted that triple talaq is against the Quran,
hence it lacks legal sanction. He wrote, "what is held to be bad in the Holy Quran cannot
be good in Shariat and, what is bad in theology is bad in law as well". They held that this
practice of Instantaneous Triple Talaq is against both theologies as well as law and just
because it is followed by a large number of people, it cannot be validated.

Notably, the dissenting minority opinion of chief justice Khehar and Justice Abdul Nazeer
held that such a practice is an essential religious element of Islam. They justified this
stance on the basis that this practice of talaq-e-biddat is followed around by a large
number of people. So, since this practice has the sanction of religious denominations and
is also followed by an overwhelming majority of the Muslim population, it is to be
declared constitutional as well as an essential religious practice.

It is mentioned under Article 25 of the Constitution that the state cannot take away any
essential religious practice of a person. Hence, if a practice is arbitrary and not an
essential religious practice, it will be categorized under the exception laid down under
Article 25. On that account, the whole issue was whether or not the practice of Talaq-e-
biddat, is an essential religious practice of Islam.

Justice Khehar believed that as far as the exceptions that are mentioned in Article 25(1) of
the Constitution, this practice was not violative of any of these exceptions as Shariat or
Muslim Personal law is not based on any state legislative action.

STEPS TAKEN BY THE GOVERNMENT :

To curb the practice and reduce the instances of triple talaq in the country, the Parliament
of India decided to make triple talaq a punishable activity and passed the Muslim Women
(Protection of Rights on Marriage) Act, 2019 after the judgment of the Court in

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2017. Section 3 under Chapter 2 of the Act declares Talaq-e-Biddat void and
illegal. Section 4 describes the punishment that must be awarded to the person who tries
to divorce his wife through talaq-e-bidat or triple talaq. The punishment extends to 3 years
of imprisonment along with a fine. The wife is also entitled to receive the amount or
allowance for herself and her children from her husband as mentioned under Section 5 of
the Act. Section 7 makes the pronouncement of triple talaq a cognizable and
compoundable offence wherein the husband is not entitled to be released on bail unless
the court is satisfied that there are reasonable grounds to do so.

CONCLUSION :
Talaq-e-Biddat or triple talaq is that form in which marriage is broken in just a few
seconds and there is no going back and this right lies only with the husband. If he realises
his mistake and wants to rectify it, it is the women who have to face the atrocities of nikah
halala. The present case is one of the landmark judgments on personal law in the country.
It is definitely a great move towards equality and social amendments, especially where
they have been needed for a long time. It took many years for the Court to realise that
triple talaq is unconstitutional and bad for society. They should now realise the need for a
uniform civil court in the country. Triple talaq is just one such practice. There are a lot of
such false practices prevailing in the society in the name of religion.

It’s time we keep a check on those practices as well and see whether they are causing
harm to society, and if so, then they should be banned. One of the best ways to get rid of
these is to have a ‘‘UNIFORM CIVIL CODE’’. A Uniform Civil Code will not only
keep a check on those but uproot some of the evil practices. It will be an advantageous
step towards the integrity of the nation. There is a long debate about its establishment, but
now it should be implemented rather than just discussed. People have to understand that it
will neither create chaos nor is it a step to target any particular religion or community, but
it will bring harmony by way of common codified law where every religion, its essential
practices, and community will find an equal place. The sooner the authorities and
government realise this, the sooner the work will be done and society will become a better
place to live in.

REFERENCES :
• https://blog.ipleaders.in/shayara-bano-v-union-of-india/
• https://indiankanoon.org/doc/631708/
• https://chdslsa.gov.in/right_menu/act/pdf/muslim.pdf
• https://www.legalserviceindia.com/legal/article-8548-case-analysis-of-shayara-
bano-v-s-union-of-india.html
• https://indiankanoon.org/doc/367586/
• https://indiankanoon.org/doc/1199182/

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• https://indiankanoon.org/doc/609295/
#:~:text=Prohibition%20of%20discrimination%20on%20grounds,birth%20or%20any%
20of%20them.
• https://indiankanoon.org/doc/631708/
• https://indiankanoon.org/doc/1858991/