Anushita Dubey(Research Intern)
In India, we have a common law system where personal laws are maintained. According to these personal laws, certain issues related to family matters such as marriage, divorce, property, etc. are governed by their respective religious laws. For example- Hindu Marriage Act, 1955, Muslim Laws, etc. As we all are aware of the fact that the personal laws are considered as an ancient phenomenon, but in India, the personal laws received their identity after the British colonial rule. Post India’s independence, the aim of enacting a Uniform Civil Code (UCC) for governing all the family laws was placed in the Constitution of India as Article 44. However, the article has not been implemented to date. (Herklotz, 2017)
Triple Talaq, also known as Talaq-e-bidat in the Islamic religion, is the practice of giving instant divorce simply by uttering the word “Talaq” three times in any form. This practice of giving Talaq allows a Muslim man to instantly give divorce to his wife which was considered to be legal according to their law. This issue became one of the highly controversial and debatable issues in the country. After the case of Shayara Bano v. Union of India, this practice was banned.
Name of the case:
Shayara Bano vs Union of India and Ors.
Writ Petition (C) No. 118 of 2016.
Before the Supreme Court of India
(2017) 9 SCC 1
Union of India with others
Suo Motu Writ (C) No. 2 of 2015
In Re: Muslim Women’s Quest for Equality versus JamiatUlma-I-Hind
Writ Petition(C) No. 288 of 2016
AafreenRehman (Petitioner) versus Union of India and others (Respondent)
Writ Petition(C) No. 327 of 2016
GulshanParveen (Petitioner) versus Union of India and others (Respondent)
Writ Petition(C) No. 665 of 2016
Ishrat Jahan (Petitioner) versus Union of India and others (Respondent)
Writ Petition(C) No. 43 of 2017
AtiyaSabri (Petitioner) versus Union of India and others (Respondent)
Date of Judgement:
22nd August 2017.
The judgment was pronounced by Five Judge Bench with a Majority of 3:2 ratio.
Jagdish Singh Khehar (CJ)
Kurian Joseph (J)
S. Abdul Nazeer JJ.
Statement of Object and Reason:
The case of Shayara Bano vs Union of India and Ors. is one of the landmark judgments based upon the issue of "Triple Talaq". This judgment was delivered by the judges of Hon'ble Supreme Court of India to provide Justice, Liberty, and Equality among the citizens of the country and also to empower Women of Muslim Community by declaring the practice of Triple Talaq as unconstitutional.
Facts of the case:
a. Shayara Bao was married to her husband for 15 years for which later in 2015, Shayara Bano’s husband gave her divorce by adopting the practice of triple talaq.
In this regard, Shayara Bano went to the Supreme Court of India, seeking justice alleging that such practice of giving divorce is unconstitutional as it violates the fundamental rights of women (Muslim women) such as Article 14, Article 15(1), Article 21 and Article 25.
The petition filed by Shayara Bano also highlighted the issue of Muslim Women Rights affected by the traditional practices of Islamic men.
Several NGO’s and The Union Government of India supported the petition.
Accordingly, on 16th February 2017, the Supreme Court of India asked the petitioners- Shayara Bano, the Union of India, Women' rights bodies (NGO's) and the All India Muslim Personal Law Board (AIMPLB) to provide their submissions in written form on the issues of talaq-e- bidat, nikah-halala, and polygamy.
Talaq-e- bidat is a practice in which a man has the right to give divorce to his wife by uttering 'talaq' three times in one sitting without the wife's consent. NikahHalala is a practice where a divorced woman who wants to remarry her husband would have to marry and obtain a divorce, from a second husband before she can go back to her first husband.
Here, the petitioners were with the view of declaring such practices as unconstitutional, whereas the All India Muslim Personal Law Board has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution. (2017)
The Validity of Triple Talaq.
Whether Triple Talaq is an essential religious practice or not?
After the acceptance of the petition filed by Shayara Bano, the Hon’ble Supreme Court of India on 30th March 2017 formed a five-judge constitution bench followed by the first hearing of the case on 11th May 2017.
Mr Amit Chadha, the Senior Advocate, represented the petitioner's side.
Mr Chadha raised an argument by stating that, according to Muslim personal law i.e. Shariat Application Act, 1937, the practice of Triple-Talaq is not a recognized form of Talaq.
He further stated that the Supreme Courts and High Courts have earlier pronounced decisions against such practices and also restricted the unilateral tar of Muslim men giving divorce to their wife by uttering talaq three times due to the absence of religious (Quranic) Sanction.
He submitted that such divorce practices are legal only in those cases as provided by Quran where there is a reasonable cause and if precedent is attempted for reconciliation.
According to the petitioner, the practice of giving Triple-Talaq is unconstitutional as it violates the fundamental rights of Muslim Women in the form of Article 14 and Article 15 of the Constitution of India. Thus, it was pleaded before the Hon’ble Court to strike down the uncodified practice performed by Muslim men in the name of personal laws.
It was also submitted by the petitioner that instead of such uncodified practices, the governing law for Muslim divorce can be The Dissolution of Muslim Marriage Act, 1939.
Mr KapilSibal, the Senior Advocate, represented the respondent side.
It was submitted by the petitioner that the Shariat act 1937 doesn’t codify substantive Muslim personal law rather it restates that the Sharia shall apply as a rule of decision to Muslim overriding any custom or usage to the contrary.
Further, it was stated that the object of this act was to subjugate the customs which discriminated based on the issues of inheritance against women.
It was argued on the point that marriage is a kind of contract between the private parties or individuals which is governed by Islamic law (Personal Law. Thus, it can not be altered by any state's legislation.
It was also argued that the definition of law provided under article 13 of the Indian Constitution does not include personal laws in its scope. This was explained with the reference of the constituent assembly debate.
It was submitted that the Constitution empowers Parliament to make social reformative laws related to secular activities about religious practices. Thus, it is only up to the Parliament who can pass the law on the subject matter after which the court can assess its validity.
It was claimed by the petitioner that Muslim women are not discriminated through the practice of triple talaq as in some cases, it may in return benefit Muslim women from immediate relief against bad marriages.
The Petitioner’s lawyer proposed four options for Muslim women to protect herself from the discriminatory use of triple talaq- She may register the marriage under the special marriage act, 1954, she can insert conditions into the nikahnama to prohibit her husband from exercising a triple talaq.
The five judges’ bench of the Hon’ble Supreme Court of India, on 22nd of August, 2017 pronounced its decision in the case of Triple Talaq declaring it as an unconstitutional practice by a 3:2 majority. The arguments from the petitioner and the respondent were heard for six days. The majority judgment was written by Justice Nariman for himself as well as on behalf of Justice Lalit, while Justice Joseph concurred by the majority opinion Chief Justice Kehar for himself and on behalf of Justice, Nazeer wrote the minority opinion. The conclusion drawn out after hearing the arguments of both the parties, the majority bench opined the practice of Triple Talaq as not an essential religious practise whereas the minority bench said this practice to be an essential religious practice. Thus, the major issue in front of the bench was whether the practice of Triple Talaq is an essential religious practice of Islam or not? As provided by Article 25 of the Constitution of India, the state cannot take away the essential religious practice of a person. As per the majority bench, it was held that the Triple Talaq or Talaq-e-bidat is not protected by the exception laid down in Article 25. The court justified its point of view in the sense that even though it is practised by the Hanafi School but it is considered as sinful in it.
Triple Talaq is against the basic tenets of the Quran and whatever is against the Quran is contrary to Shariat therefore, what is bad in theology cannot be good in law. The majority bench relied on its earlier decision ShamimAra which held that this practice of Triple Talaq is against both theology and law and just because it is followed by a large number of people it cannot be validated. Therefore, such practice is declared unconstitutional and set aside. Although the said practice has no relevance to the three exceptions provided by Article 25 of the Indian Constitution, it is surely against the other provisions of Part III (Fundamental Rights) namely Article 14. The said practice violates the Fundamental Right of equality since it is against the rights of women as they have no say in the declaration of divorce unlike in other religions. It was also held that if some practice is not prohibited then it does not necessarily mean that such practices form an essential part of religious practice. The Hon'ble Court directed the Parliament to take legislative measures against the practice of triple talaq. (2018)
The judgment of Shayara Bano vs Union of India is one of the landmark judgments of India which is appreciated throughout the jurisdictions as it guarantees protection for Muslim women against the social evil such as Triple Talaq practice which was being promoted in the name of religion and personal laws. The majority constitutional bench of judges criticized the government for not passing any law relevant to such discriminatory practices. They were with the view that such practices were making the life of Muslim women like hell allowing Muslim men to live their life with whims and fancies. Since the last few years, Muslim women were seeking the remedy for such evil practices happening against them, but finally, in the year 2017, the decree was passed by the Court.
The Hon'ble Court was with the view that whenever any such practices are violating the fundamental rights of an individual enshrined under Part III of the Constitution of India, the Court will end such practices for the welfare of its citizens. The practice of giving Triple Talaq has already been banned in many of the Islamic nations whereas here in the Indian context, only the Hanafi School was practising Triple Talaq. Thus, the question of whether the said practice is essential or not is no question. It is violating Article 14 and Article 25 of the Indian Constitution and hence was struck down. The Hon'ble Supreme Court made a point stating that even in Hinduism the practice of Sati Pratha was removed regressive from the religion even though it was practised widely, since time immemorial. Thus, the Hon’ble court held that merely because the practise is widespread and continuing from time immemorial it cannot be held as an essential religious practice. According to my opinion the view of the court that “what is bad in theology cannot be good in law” was rightly stated.
To understand the essential part of any religious practice (here, Triple Talaq), it was not of much importance to dwell down and check the details regarding the practice in Islam because if in real sense it is one of the essential religious practice, then it won't be banned in other Islamic nations. Another conclusion that can be made is that the said practice is only practised in Hanafi School which itself considers it sinful. Thus, the majority judgment was very accurately passed considering all the facts whereas the minority decision observed by CJ Kehar on the behalf of himself and Justice Nazeer was flawed in every aspect. The following facts needed to be critically analyzed by the minority judges. An essential religious practice would not have been banned by the Islamic nations nor it can be considered as sinful by itself. And simply if any particular religious ideology follows such practices it doesn't restrict states not to prohibit them.
The whole reasoning of the minority bench is irrational, unfair, and unjust. If the two judges have also ruled in the favor of majority the impact would be altogether different. However, thanks to the justified reasoning provided by the majority bench India finally did away with the regressive and backward practice of Triple Talaq. (2018)
Thus, after so many years, the struggle of Muslim women, and with the supporters of banning such evil practice of Triple-Talaq, we finally got the justice by Shayara Bano’s and Ishrat Jahan’s petition including other Muslim women. Hon’ble Supreme Court made its citizens once again to trust in our judiciary and government for promoting the welfare of Muslim women.
Herklotz, Tanja. 2017.Shayara Bano versus Union of India and Others. The Indian Supreme Court's Ban of Triple Talaq and the debate around Muslim Personal Law and Gender Justice. Berlin:s.n., 2017. ISSN.
2018. Shayara Bano vs Union of India – Triple Talaq – Case Summary. Law Times-Journal. [Online] 9 24, 2018. [Cited: 8 6, 2020.] https://lawtimesjournal-in.cdn.ampproject.org/v/s/lawtimesjournal.in/triple-talaq/?amp=&usqp=mq331AQFKAGwASA%3D&_js_v=0.1#aoh=15964422626926&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Flawtimesjournal.in%2Ftriple.
2017. Triple Talaq - Case Background. Supreme Court Observer. [Online] 2017. [Cited: August 6, 2020.] https://www.scobserver.in/court-case/triple-talaq-case.
Yadav, Anima. Case Brief: Shayara Bano and others v. Union of India and others, writ petition (C) No. 118 of 2016. Juscholars. [Online] [Cited: August 6, 2020.] https://www-juscholars-com.cdn.ampproject.org/v/s/www.juscholars.com/amp/shayara-bano-and-others-v-union-of-india-and-others-writ-petition-c-no-118-of-2016?usqp=mq331AQFKAGwASA%3D&_js_v=0.1#aoh=15966450981096&referrer=https%3A%2F%2Fwww.google.com&_t.