The Shayara Bano case is also popularly known as the Triple Talaq case. With different types of valid divorces in Islamic Law, Triple Talaq or Talak-ul-biddat is still a controversial issue. This Triple Talaq system was challenged in the Supreme Court by Shayara Bano. The judgement declared Triple Talaq unconstitutional.
In 2016, Shayara Bano appealed to Supreme Court against the practice of Triple Talaq. She said it is unjust for all women who have dedicated and served years to their husband’s family. Shayara Bano who was married to Rizwan Ahmed for 15 years was divorced by her husband through the instant divorce method, ‘Talak-ul-biddat’. He gave Shayara Bano Talaq-nama on 10th Oct, 2015 in the presence of two witnesses. At that time, she was staying with her parents in Uttarakhand due to illness.
Upon this incident, Shayara Bano appealed to the Supreme Court to declare the divorce as ‘void ab initio’ based on a violation of her fundamental rights in Article 25.
The constitutional validity of Triple Talaq was questioned before the constitution bench of the Supreme Court consisting of 5 judges –
- Justice Rohinton Nariman
- Justice U. U. Lalit
- Justice Kurian Joseph
- Justice Jagdish Singh Khehar
- Justice Abdul Nazeer
When the petition was filed by the petitioner Shayara Bano, many other Muslim women and women’s rights groups also came forward to support her. Later on 16th February 2017, the Supreme Court asked the petitioner Shayara Bano, women’s rights organizations, the Union of India, and the All India Muslim Personal Law Board (AIMPLB) to give written petition on the talaq-e-biddat, polygamy, and Nikah halala matters.
- In Nikah Halala, if the divorced woman wants to remarry her first husband, she will have to marry and divorce her second husband before she gets back with her first husband.
- In Polygamy, Muslim men are allowed to keep more than one wife.
The Union of India and women’s rights organisations like Bhartiya Muslim Mahila Andolan and Bebaak supported Shayara Bano’s appeal and stated that these practices are unconstitutional whereas the AIMPLB argued that Muslim personal law is not subject to constitutional Judicial review and these are important practices of Islamic religion which should be protected under the Article 25 of the Indian Constitution.
Argument by Petitioner
The senior advocate representing Shayara Bano, Mr. Amit Chadha urged the court to dissolve the Triple Talaq because it violates Article 14 and 15 of the Fundamental Rights on the Indian Constitution.
Argument by Respondent
Mr. Kapil Sibal stated that the sharia court has the authority to make decisions or override the Muslim custom. He claims that marriage is a private affair therefore no state legislation can change it. He further argued that if only the Parliament makes social reforms on Article 25 clause 2 (right to freedom of religious practice), then the case can be validated. Until then, Islamic law cannot be judged.
Judgement About the Case –
The hearing started on 11th May 2017. On 22nd of August 2017, the five judges manifested their verdict in the Triple Talaq case. They declared that the practice was unconstitutional by 3:2 majorities. It was 6 days heated argument from both sides and finally, the judgment was reserved for the case.
Justice Rohinton Nariman and Justice U.U. Lalit stated that Triple Talaq is regulated by Muslim personal law application, 1937 which is also known as Shariat. According to them, the practice is unconstitutional because it is irrational. Justice Kurian Joseph stated that Triple Talaq is against the Quran and lacks legal sanction.
On the other hand, Justice Abdul Nazeer along with Justice Khehar put forward that Triple Talaq is not regulated by the Shariat Act of 1937 but is an internal part of personal law. They debated on the article 25 and 44 of the Fundamental Rights and further stated that the gender discriminatory practice of Triple Talaq is a legislative action and its constitutionality cannot be challenged.
Is talaq-e-bidat An Essential Practice of Islamic Law?
Triple Talaq is a type of diverse that was practiced in Islam. Muslim men could legally divorce their wives by uttering the word ‘Talaq’ three times. Earlier the pronouncement of the word in oral and written form was considered legal, recently electronic form is also accepted. The Quran on the other hand established means to avoid such rational divorces. The Quran states two waiting periods of 3 months between the final pronouncements of divorce. This period is given to husbands to reconsider their decision.
Affairs in Muslim families in India are controlled by the Muslim Personal Law Application Act, 1937 Shariat. It was the first act that was passed after the Government of India Act, 1935. The Muslim personal law replaced the Anglo Muhammadan Law and was forced on all Muslims in India. The Muslim legal scholars, the Ulama of Hanafi Sunni, considered Triple Talaq binding as long as it was pronounced in front of Muslim witnesses and later confirmed by a Sharia Court.
In traditional Islamic theology, Triple Talaq is objected, but also considered a rightfully valid procedure of divorce. Changing social surroundings around the world have created tremendous dissatisfaction with the traditional Islamic law of divorce. Different countries have taken this into account and in the early 20th century various implementations and reforms were made in the law of divorce.
If Triple Talaq System Violates Any Fundamental Right
Although the Supreme Court took the right decision but the approach was judged by many leaders and prosecutors.
Justice Khehar seized Triple Talaq from the point of view of the constitution and not from the Muslim law. According to him, the Muslim personal law is not a state enacted law so it is not subject to fundamental rights. On the other hand, Justice Nariman considers Triple Talaq to be the law in force according to Article 13. Since it comes under the Muslim Personal Law Act, 1937, therefore it automatically comes under the state laws.
The debate came to a point where it was doubted whether it violated Article 14 and 15 (Right to Equality and Freedom) and article 25 (Right to Religion) of the Fundamental Rights.
Right to Equality – Article 14
Article 14 of the Fundamental Rights in the Indian Constitution promises Indian citizens the Right to Equality. Nobody within the territory can discriminate on caste, colour, sex, etc. going against the law. Triple Talaq is a violation of Article 14 because it discriminates against Muslim women from other women of different castes in the same society.
Right to Freedom – Article 15
In no other law, husbands get such power of unilateral annulment of marriage. Such power is peculiarly found only in Muslim law where Muslim husband has more rights and power over Muslim wife. A Muslim wife can also get a divorce by appealing to the court, but only after the husband imposes talaqnama. If the law in article 25 was not protected, Article 15 would have been violated.
Under Article 25, it is stated that every person is entitled to freely practice, propagate and profess religion. Therefore, the right to practice religion, right to freedom, and right to equality under article 14 and article 15 are violated in the Triple Talaq form of divorce. The writ petition filed by Shayara Bano appealed protection of Article 25 of the Constitution under which every individual is entitled to freely practice, profess, and propagate religion.
On 22nd August 2017, Indian Supreme Court declared Triple Talaq or talaq-ul-biddat unconstitutional. On 30th July 2019, the Parliament of India confirmed Triple Talaq as lawful and statutory. It is considered as a punishable act which was effective from 1st of August 2019.