Law Insider India

Legal News, Current Trends and Legal Insight | Supreme Court of India and High Courts

Shayara Bano Vs Union of India and Ors.

5 min read

Citations:  Shayara Bano Vs Union of India and Ors.

Date of Judgement: 22/08/2017

Equivalent citations: (2017) 9 SCC 1

Case No: W.P.(C) No.-000118-000118 / 2016

Case Type: Writ Petition (C)

Petitioner/Appellant: Shayara Bano

Defendant/Respondent: Union Of India And Ors. and Ministry Of Women And Child Development Secretary

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

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

Cases Referred:

  • Yousuf Rawther Vs Sowramma  AIR 1971 Ker 261.
  • Prakash Vs Phulavati (2016) 2 SCC 36.
  • Budhan Choudhry Vs State of Bihar .
  • E.P Royappa Vs State of Tamil Nadu AIR 1974 SC 555.

Facts:

  • Muslim women, like the rest of the female population, lack access to good education and self-sufficiency. They are not allowed to attend school and are also not permitted to work. As a result, the Muslim community’s requirement for maintenance increases after divorce
  • Rizwan Ahmed was Shayara Bano’s husband for 15 years. Her spouse divorced her in 2016 via talaq–e-bidat (triple talaq). Ms Bano maintained that three practises – triple talaq, polygamy, and nikah halala (the practise of compelling women to marry and divorce another man so that their prior husband might remarry her after triple talaq) – were illegal, citing the Constitution’s Articles 14, 15, 21, and 25.

Issues Involved:

  • Whether or not the practise of talaq-e-biddat (particularly, instantaneous triple talaq / a key Islamic ritual) is permissible?
  • Whether triple talaq is a violation of any basic rights?

Contention of Petitioner/Appellant:

Counsel:  Balaji Srinivasan for Shayara Bano

  • Mr Amit Chadha represented Shayara Bano in the case of Shayara Bano v. Union of India. The Muslim personal law (shariat) application legislation, 1937, does not recognise triple talaq as a type of divorce, according to Shayara Bano’s senior lawyer. He noted that various high court and supreme court decisions have limited Muslim men’s unilateral right to divorce women, and he criticises the practise of triple talaq, which he claims is not sanctioned by the Quran.
  • Furthermore, this ruling confirms that the Quran permits divorce for good reason if it is preceded by an attempt at reconciliation. He urged the court to strike down triple talaq, claiming that it violates Article14 and 15 of the Indian Constitution  by giving Muslim men unrestricted right to divorce.
  • He finished by stating that if triple talaq is repealed, the dissolution of Muslim marriage statute of 1939 would be the rule of divorce for Muslims, which would apply equally to all Muslims, regardless of gender.

Contention of Defendant/Respondent:

Counsel: Mukesh Kumar Maroria for Union of India and Ors.

  • Mr. Kapil Sibal first clarifies that the Shariat Act of 1937 does not define substantive Muslim personal law, but it does reaffirm that the Sharia shall be applicable as a rule of judgement to Muslims, notwithstanding any tradition or practise to the contrary. He claimed that the act’s goal was to eliminate customs that prejudiced against women when it came to inheritance. Furthermore, no official regulation can change marriage because it is a private contract governed by Islamic law.
  • Mr. Sibal cites the arguments in the Constituent Assembly to claim that personal laws are not included in the concept of law under Article13. He noted that the assembly had dismissed an amendment that attempted to add “and anything else” to the description of law under consideration, as well as the addition of such law under Article13. He said that the concurrent list’s clear reference of personal law and its removal from Article13 demonstrate the constitution’s makers’ desire to exclude personal law.
  • He contended that the constitution gives Parliament the authority to pass social reform legislation governing secular activities related to religious customs. As a result, a court can only judge the law’s legitimacy after Parliament has passed it. Mr. Sibal gave the example of money collection in a temple as an example of such secular activities
  • Mr. Sibal wrapped up his points by asserting that Muslim women are not prejudiced against under the triple talaq practise, and that they may even profit from instant relief from terrible marriages. He recommended four options for Muslim women to protect themselves against triple talaq’s discriminating use:
  • She can register the marriage under the Special Marriage Act of 1954, and she can include prerequisites in the nikahnama to prevent her husband from practising triple talaq.
  • She can also entrust the right to talaq to herself, and she can demand a large mehar amount to dissuade triple talaq.

Judgement:

  • The supreme court’s five-judge bench issued its judgement in the triple talaq case on August 22, 2017, declaring the practise unlawful by a 3:2 majority. It deferred the matter for ruling after 6 days of arguments from both sides.
  • The court ordered Parliament to pass legislation prohibiting the practise of triple talaq.
  • The Muslim personal law (shariat) application 8, 1937, according to Justices Rohinton Nariman and Uday Lalit, regulates talaq-e-biddat. They argued that the practise is unconstitutional since it is clearly arbitrary. In his concurring opinion, Justice Kurian Joseph stated that triple talaq is prohibited by the Quran and hence has no legal standing. “What is considered wrong in the holy Quran cannot be good in Shariat,” he added, “and what is bad in theology is bad in law.”
  • Notably, Chief Justice Khehar and Justice Abdul Nazeer’s dissenting minority opinion connected the elevation of personal law to the status of basic rights in the constituent assembly debate on Articles 25 and 44. They claimed that the shariat act of 1937 does not control triple talaq, but that it is an inherent aspect of personal law. As a result, Article 25 protects it. Furthermore, legislation, not a challenge to the constitutionality of the gender discriminatory practise of talaq-e-biddat, is the remedy to the gender discriminatory practise of talaq-e-biddat.

In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq was set aside.

Conclusion:

Without a doubt, the triple talaq decision has become a landmark decision in this country, particularly in terms of private law. It has provided us with a variety of options for dealing with them, particularly Justice Joseph’s “culturally grounded” decision. This decision clearly demonstrated that the Supreme Court has learned from its previous mistakes in the area of personal law.

Despite the fact that it lacked clarification on gender equity and inequality in personal laws and how they should be dealt with, it was a positive step forward. No longer can a husband desert his wife by breaking the marital ties based on his whims and fancies. The court determined that equality, particularly gender equality, is not merely a theoretical notion. The nation, on the other hand, is concerned about the minority bench’s viewpoint.

If the Chief Justice of India prioritises practises like Triple Talaq while ignoring widespread crimes, the apex court’s judges ought to reconsider their positions.

Drafted By: Pracheta Sharma, IIMT, GGSIPU

Edited by: Aashima Kakkar, Associate Editor, Law Insider

Published On: November 23, 2021 at 14:25 IST