| Citation | AIR 2017 Supreme Court 4609 |
| Date Of Judgment | 22nd August 2017 |
| Court | Supreme Court of India |
| Case Type | Writ Petition (C) No. 118 of 2016 with Suo Moto Writ (c) |
| Appellant | Shayara Bano |
| Respondent | Union of India, Ministry of Law and Justice, Ministry of Women and Child Development |
| Bench | Jagdish Singh Khehkar, C.J.I., Kurian Joseph, J., Rohinton Fali Nariman, J., Uday Umesh Lalit, J., and S. Abdul Nazeer, J. |
| Referred | Article 14,15,19,21 and 25 of The Indian Constitution. |
Shayara Bano v Union of India, known as the ‘TRIPLE TALAQ CASE’ gave a historical judgment to India. TALAQ! TALAQ! TALAQ! A Muslim husband stated these three words to his wife, and their marriage ended. But what about the women and their children? Do these unilateral divorces have any validity? Do you think the instant triple talaq practice violates women’s fundamental rights? This article discusses the Shayra Bano case in which “instant triple talaq was dealt with and argued for a long time. Let us see what happened in the case!
WHAT IS ’TRIPLE TALAQ’ PRACTICE?
As per Sharia Law, there are three different sorts of divorce, but only “talaq-e-biddat” is irrevocable. It is mainly practice by the Muslim groups that adhere to the Hanafi school of Law. Muslim wives are not allowed to divorce their spouses under the Islamic Law, but husbands are. The Muslim Personal Law (Sharia Application Act,1937) requires women to initiate the court procedure for divorces. Shayara Bano and Rizwan Ahmed had been married for 15 years.
Before moving ahead with the case, it is important to discuss why it is important?
WHY IS THE SHAYARA BANO CASE IS IMPORTANT?
1. The case concentrated on the constitutional validity of triple talaq & affirmed the fundamental rights of the Muslim women, including right to equality and dignity, cannot be violated by arbitrary divorce practices
2. The judgment brought attention to the plight of the Muslim women who had been badly affected by the practice of triple talaq. The decision empowered Muslim women to reaffirm their rights within the frame of the Indian Constitution.
3. This case sparked a border debate on the need for gender justice and the equality within religious practices & portrayed the role of the judiciary in interpreting personal laws that religious practices must conform to the fundamental rights enshrined in the Indian Constitution.
FACTS OF THE CASE
• Shayra Bano was married to Rizwan Ahmed for 15 years, and according to the claims, she was subjected to dowry harassment and domestic violence.
• In 2016, she was divorced through talaq-e-biddat, which initiated the writ petition field before the Supreme Court.
• The petition stated that the practice of Nikah-Halala, triple talaq and polygamy under Muslim personal law were unconstitutional, illegal, and in violation of several fundamental right guaranteed under Article- 14,15,21 and 25 of the Indian Constitution.
• The Union of India and women’s rights organisation, including the Bhartiya Muslim Mahila Andolan (BMMA) and the Bebaak Collective, supported Ms. Bano’s petition to declare these practices unconstitutional. They even sought the court to pronounce that the Fundamental Rights apply to personal law.
• The All-India Muslim Personal Law Board (AIMPLB) has argued that since Muslim personal law is not codified and is protected by Article 25 of the Constitution, it is not subject to constitutional judicial review. Additionally, the court lacks of jurisdiction to consider a constitutional challenge to Muslim personal law.
• The Court sought written responses from the Union of India Shayara Bano, several organizations working for women’s rights, and the All-India Muslim Personal Law Board (AIMPLB) on the challenge and issues surrounding polygamy, nikah-halala, talaq-e-biddat on February 16,2017.
ISSUES
• Whether the practice of Triple Talaq is constitutional?
• Whether the practice of Talaq-e-biddat (instant talaq) comes under the purview of an essential practice of Islam?
JUDGMENT
The Supreme Court established a 5-Judge Constitutional Bench on March 30,2017, to hear the case. J. S. Khekhar, the Chief Justice, and Justice Kurian Joseph, R.F. Nariman, U.U Lalit and Abdul Nazeer formed the Bench. The Bench considered the case from May 11 to May 19, 2017, and the judgment was handed down on August 22 of that same year. The majority of the 3:2 vote determined that the talaq-e-biddat custom was “manifestly arbitrary” and unlawful. Justice Nazeer and Chief Justice Khehar dissented on the grounds that the Right to Religion protected talaq-e-biddat and that parliament should have drafted legislation to control the practice.
Triple Talaq was declared unconstitutional under Article 14 r/w Article 13(1) of the Indian Constitution. The Court determined that the Muslim Personal Law (Shariat) Application Act, 1937 had penalised the practice as a matter of personal law. The punishment for committing this crime is imprisonment for up to 3 years.
The court clarified that “an arbitrary action must include negation of equality” and found that the triple talaq’s provision that “the marital tie can be broken capriciously with no attempt at reconciliation to preserve it” constitute and arbitrary act that violates Article 14 of the Constitution.
The Supreme Court found that the practice of Triple Talaq or Talaq-e-biddat is not protected by the exception outlined in Article 25 since it is not an essential practice of Islam.
The Court argued that even though the Hanafi School engages in it, doing so is wrong. Triple Talaq is against the fundamental principles of Islam, and since Shariah contradicts Quran, what is evil in theology cannot be good in legislation.
IMPACT OF THE SHAYARA BANO’S CASE
1. Legal Precedent:
The most immediate impact of the case was the legal precedents it set. The judgment declared the practice of triple talaq unconstitutional, establishing a crucial benchmark for the future cases where the personal religious practices intersect with constitutional rights. These precedents signalled that individual rights and gender equality would take precedence over traditional practices.
2. Empowerment of Muslim Women:
The judgments empowered Muslim women by providing them legal protection against the arbitrary practice of instant triple talaq. This encouraged women to challenge discriminatory practices and demand equality within their communities.
3. Decline Triple Talaq Instances:
The ruling made it clear that arbitrary divorces would not be legally recognised, leading to increasing consideration and counselling between spouses before taking such drastic steps. The fear of legal consequences acted as a deterrent against the misuse of triple talaq.
4. Awareness and Advocacy:
The case brought the issue of triple talaq into mainstream disclosure, increasing public awareness about the challenges faced by Muslim Women due to this practice.
5. Political and Legislative Reforms:
The judgment influenced political discourse, with policymakers and lawmakers discussing the need for legislative reforms to address the issue of triple talaq comprehensively. In 2019, the Indian Parliament passed the Muslim women (Protection of Rights on Marriage) Act, which criminalised instant triple talaq. While this move received mixed reactions, it demonstrated the legislative impact of the Shayara Bano case.
6. International Attention:
The case drew international attention to the struggle of Muslim women in India and their fight for gender justice. It was cited as an example in discussion about women’s rights, religious practices, and human rights on a global scale.
7. Cultural Shift:
The judgment contributed to a cultural shift within Indian society, where conversation around women’s rights and gender equality gained momentum.
CONCLUSION
In essence, the Shayara Bano case acted as a catalyst for change, sparking conversations, reforms, and actions aimed at ensuring gender justice within personal laws and promoting the overall empowerment of women in India. While challenges remain, the case’s impact has been undeniably transformative in reshaping the legal and social landscape surrounding women’s rights and religious practices.
REFERENCES
https://www.legalserviceindia.com/
This Article is written by Shravani Vilas Khairkar of B. C. Thakur College of Law, Intern at Legal Vidhiya.
