Case Analysis: Shayara Bano v. Union Of India & Ors

Bench

The bench in this case:

1. Justice Jagdish Singh Khehar
2. Justice S. Abdul Nazeer
3. Justice Rohinton Fali Nariman
4. Justice Uday Lalit
5. Justice Kurian. M. Joseph

Parties

Petitioner- Shayara Bano and Ors

Respondent- All India Muslim Personal Law Board, Union of India

Introduction

Divorce is a widely known practice and when we think of divorce, we often remember one couple, one judge, two layers, and paper to sign, thus an end to the marriage. But have you ever heard of divorce by texting or sending a voice message with two words, thus, putting an end to marriage? Do you think such types of divorce are legal in a country we reside in? Are these practices good for society?

Some practices and traditions are nothing more than harmful to people, but still, people persist in following such traditions. Under Muslim Law, there was a tradition of divorce, regarded as ‘Talaq-e-biddat’ and generally as ‘Triple Talaq’. According to this practice, a Muslim man can divorce his wife by repeating the word ‘Talaq’ in one sitting. The mode of communication can be written, oral, or electronic. This was majorly followed among the Muslims belonging to the Hanafi Islamic School of the Sunni sect.

With the change in time, the modes of triple talaq expanded and it became easier to execute. Many cases were reported where the husbands were sending voice messages, or pictures over Snapchat, or text messages, uttering talaq thrice and giving divorce to their wives. This type of divorce made the husband the sole decider to end the marriage without the wife’s consent and any reasonable ground.

In the judgement in Shayara Bano v. Union of India[1], the Supreme Court declared this custom of ‘triple talaq’ unconstitutional. This judgement is one of the landmark judgements in the history of law because through this the Apex Court has tried to throw light on the social aspect of gender justice. This judgement is not focused on the rights of one lady, Shayara Bano but it is also important to bring uniformity and stability in the constitutional status of personal law.

Background of the Case

Triple Talaq was often regarded as ‘lawful though sinful’. Five years before the passing of the Muslim Personal Law (Shariat) Act, 1937, in the case of Sarabai v. Rabaibai[2],, the court, concerning triple talaq held that “it is a good law but bad is the ideology”. However, Justice Krishna Iyer was the first judge to raise concern on this issue in the Kerala High Court. For almost two decades, many judgements were declared which were against the custom, the most significant in 2002 in the case of Shamin Aru v. State of Uttar Pradesh[3], although it did not raise a serious concern but laid down certain conditions for a valid talaq.

In 1952, the Bombay High Court in the case of State of Bombay v. Narasu Appa Mali[4], a two-judge bench held that the phrase ‘laws in force’ used by Article 13 of the Constitution does not include personal laws because the source of personal laws was religion rather than a state. However, two eminent Supreme Court judges criticised this decision of the bench and realized the need to deal with the issue of Triple Talaq.

Facts of the Case

Shayara Bano, wife of Rizwan Ahmed completed their 15 years of marriage in 2016 was a woman survivor of domestic violence and dowry harassment and had been unilaterally divorced by means of Triple Talaq. Aggrieved by this act of her husband, she filed a writ petition in the Apex Court seeking to hold Triple Talaq, polygamy, and Nikal Halala unconstitutional under Article 14, 15, 21, and 25 of the Constitution of India. However, the Court decided to deal only on the matter of triple talaq. This writ petition was clubbed with five other petitions.

Talaq-e-biddat is a practice in which a man has the right to divorce his wife instantaneously by uttering the word ‘talaq’ thrice without his wife’s consent. Polygamy is the practice of having more than one wife by a Muslim man. Nikah halala is the practice in which if a Muslim woman wants to remarry her husband, she needs to marry and divorce a second husband, and then only she can go marry her first husband.

On February 16, 2017, after the petition was filed, the Supreme Court asked all the inclusive parties to submit their submissions on the three issues raised by the petitioner. The submissions clarified that the Union of India, women’s rights organisations like Beebak collective, and Bhartiya Muslim Mahila Andolan were supportive of the plea filed by Shayara Bano. However, the All India Muslim Law Board argued that the Supreme Court did not have the jurisdiction to deal with any matter of Muslim personal law.

 Issues Of the Case

Several issues were raised in this case:

• Whether the practice of Triple Talaq was an essential practice of Islam?
• Whether the practice of Talaq-e-biddat or Triple Talaq violates the fundamental rights provided by our constitution?

Arguments on behalf of the Petitioner

A senior advocate, Mr. Amit Chadha argued the following points on behalf of the petitioner, Shayra Bano:

1. That triple talaq is not recognized by Muslim Personal Law (Shariat) Application Act, 1937.
2. That several High Courts and the Supreme Court have restricted the unilateral act of Muslim men to divorce their wives and have criticized the practice of triple talaq as it has not been sanctioned by Quran.
3. That Quran permits divorce for a reasonable cause and if it is backed by reconciliation.
4. That triple talaq violates Article 14 and 15 of the constitution and the court should strike down triple talaq as it gives Muslim men an un-codified power to divorce their wives.
5. That if triple talaq was struck down, it would result in the dissolution of the Muslim Marriage Act, 1939, and hence, it could be applied to the entire Muslim community, irrespective of gender.

Arguments on behalf of the Respondent

Mr. Kapil Sibal and Mr. Mukul Rohatgi argued on behalf of the respondents by presenting the following points:

1. That the Shariat Act, 1937 states that Sharia law should apply as a rule of decision to Muslims above any other custom, however, it does not codify substantive Muslim personal law.
2. That the object of the Shariat Act was to overcome discriminatory customs that inhibited women in matters of inheritance.
3. That marriage being a private contract in Muslim law, no State legislation can amend it.
4. That the definition under Article 13 of the Indian Constitution does not include personal laws as the constituent assembly rejected the amendments and inclusions in law that sought to out phrase ‘and anything else’ to the definition of law.
5. That the explicit mention of ‘personal law’ in the concurrent list and its absence in Article 13 of the Constitution reveals the intention of constitution-makers to exclude personal law.
6. That the constitution empowers the Parliament to make laws on the matters of religious practices, so once the Parliament has made a law, then only the court can assess its validity and not before it.
7. That Muslim women were not discriminated against triple talaq and this practice may even benefit them from getting relief from bad marriages.
8. That there were four ways for Muslim women to protect themselves from discrimination arising from triple talaq:

• A woman may delegate the right to talaq to herself
• Women may register their marriage under the Special Marriage Act, 1954
• She many insert conditions in nikahnama to prohibit her husband from practising triple talaq
• She can insist on the payment of a high amount of mehr in order to deter this exercise.

Judgement of the Case

On August 22, 2017, a five-judge bench of the Supreme Court with a majority of 3:2 pronounced the decision by holding the practice of Triple Talaq unconstitutional. The 3:2 majority of the judgement can be divided in the following manner:

1. Majority opinion- Justice Rohinton Nariman and Justice Uday Lalit; written by Justice Nariman
2. Concurring opinion- Justice Kurian Joseph
3. Minority opinion- Justice J.S Khehar and Justice Abdul Nazeer written by Justice Khehar

Justice Nariman and Justice Uday Lalit who ruled in favour of the judgement held the following points:

• Triple talaq is regulated by the Muslim Personal Law (Shariat), 1937.
• The bench held that the practice of talaq-e-biddat is unconstitutional as it is arbitrary in nature.
• The judges raised concern on the fact that this impugned practice was not mutual and it gave Muslim husbands the right to divorce their wives and break the marital tie without any reason, on their whims.
• This practice is arbitrary and is violative of Article 14 of the Constitution of India.
• Justice Nariman noted that triple talaq was an irregular form of divorce, though legal and is considered to be sustaining the rage of Almighty.

Justice Kurian Joseph held that triple talaq is not in conformity with the Quran and does not possess legal sanction. Thus, he wrote, “what is bad in the Holy Quran cannot be good in Shariat and, what is bad in theology cannot be good in law.” On the issue of the 1937 Act, Justice Joseph agreed with Justice Khehar while disagreed on the reasoning of Justice Nariman. However, Justice Joseph agreed with the views of Justice Nariman on the issue of arbitrariness being an appropriate test for Article 14 of the constitution and held that the said Act cannot be subjected to such test. Finally, Justice Joseph was of the view that “there must be a reconciliation in the Quran and if it works, then revocation should be an essential step before completion of talaq.” This was further upheld by the Apex Court in the case of Shamim Ara v. State of UP. Later, upholding the case of Shamim Ara, the Supreme Court invalidated triple talaq in many cases  

Justice J.S. Khehar and Justice Abdul Naseer who ruled against the judgement mentioned the following points of dissent:

• They outlined the debate of constituent assembly on the elevation of the personal law over the status of fundamental rights on Article 25 and Article 14.
• This practice was an essential religious part of Islam and was widely practiced by a large population.
• The judges held that triple talaq was protected by Article 25 of the Constitution as it was not regulated by the Shariat Act of 1935, but was a congenital part of personal law.
• They pointed out that talaq-e-biddat, a gender-discriminatory practice, was not a challenge to its constitutionality, but a legislative action.

Thus, a five-judge bench with a majority of 3:2 struck down the Shariat Act of 1937 to the extent that it recognized triple talaq.

Analysis of the Judgement

This was a landmark judgement pronounced by a majority of 3:2. The judgement was veracious, though the majority of judges failed in approaching some of the issues. Though the court passed the judgement, it failed to look deep into some of the aspects of the personal laws. The bench could not change the legal position of talaq-e-biddat completely but has created ambiguity on the constitutional status of personal laws in India. The judgement needs to be more elaborate by including all the disputed points. This landmark judgement is one of the major cases on private law in India. However, this judgement was a result of many discrepancies on triple talaq, so the Apex Court has learned from its past mistakes and corrected the same by declaring this practice of divorce as unconstitutional. The Apex failed to clarify gender justice and inequality in personal laws and how these should be treated.

Therefore, the best part of the judgement is that the Supreme Court finally succeeded in bringing out clarity in triple talaq and has helped the Muslim women to live a secure life and without being a victim of unilateral divorce on the whims and fancies of their husbands.

Conclusion

This famous case on Triple talaq has changed the scenario of divorce in Muslims in India. Earlier, the Muslim men were free to divorce their wives using trending technologies like WhatsApp, Snapchat, or call by pronouncing the word ‘talaq’ thrice, but now this has been declared void by the Court. The petitions filed by Shayara Bano, Ishrat Jahan, Aafreen Rehman, Gulshan Parveen were successfully heard by the court and have brought justice to other women who could not raise their voice under undue influences. This decision has restored the trust of the common people in the judiciary that the Supreme Court is for the people and their rights. Thus, this judgement has brought justice to women who were a victim of such an immoral practice for decades.

[1] (2017) 9 SCC 1.

[2] (1906) 8 BOMLR 35.

[3] (1906) 8 BOMLR 35.

[4] AIR 1952 Bom 84.