|2017 9 SCC 1
|22nd August 2017
|The Supreme Court of India
|Shayara Bano and others
|Union of India, All India Muslim Personal Law Board, Rizwan Ahmed, and Ministry of Women and Children Development Secretary
|Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Niraman, Justice Uday Umesh Lalit, Justice K.M. Joseph
Shayara Bano vs Union of India, better known as the “Triple Talaq Case”, gave India a historic judgment declaring the practice of triple Talaq unconstitutional. The decision of Triple Talaq is widely regarded in all jurisdictions as a safeguard against social evils. Due to the wise and justified reasoning of the Supreme Court majority, India finally abolished the regressive and immoral practice of Instant Triple Talaq.
FACTS OF THE CASE
1. The petitioner Shayara Bano was married to her husband Rizwan Ahmed for 15 years. In 2016, he divorced his wife through instant triple talaq (talaq -e biddat), a practice that allows a man to divorce his wife by saying the word “talaq” three times in one session without her consent.
2. Shayara Bano filed a petition in the Supreme Court seeking to declare three practices such as talaq-e-biddat, polygamy and nikah-halala unconstitutional because they violate the fundamental rights of women under Articles 14, 15, 21 and 21. respectively. Article 25 of the Constitution of India.
3. Nikah Halala refers to the practice where a divorced woman who wishes to remarry her husband must marry and divorce her second husband before remarrying her first husband, while polygamy refers to Muslim men having more than one woman.
4. On 16 February 2017, the court sought written submissions from Shayara Bano, the Union of India, several women’s rights organizations and the All India Muslim Personal Law Board (AIMPLB) on talaq-ebidda, nikah-halala and polygamy.
5. Union of India (Union of India) supported the claim of petitioner that these practices are unconstitutional and women’s rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA). However, the AIMPLB argued that uncodified Islamic personal law was beyond the scrutiny of the Constitutional Court and that these were essential Islamic practices protected by Article 25 of the constitution.
•Whether the practice of talaq-e-biddat specifically mentioning Instantaneous Triple Talaq an essential practice of Islam?
•Whether the practice of Instantaneous triple talaq violates any fundamental rights of the constitution?
•Whether Triple Talaq is protected under Act 25 of the constitution?
CONTENTIONS OF APPELLANT
• Counsel for the appellant argued that triple talaq is not a recognized form of divorce under the Islamic Personal Law (Sharia) Application Act, 1937. Several high courts and the Supreme Court have limited the unilateral right of Muslim men to divorce. Muslim women and even criticize the practice of triple talaq because it has no Quranic sanction. In this case, the contested practices are not essential practices of Islam, as is clear from the laws of other Islamic countries that have prohibited such practices.
•Another counsel stated that according to the Qur’an, a man can pronounce talaq three times after attempts at reconciliation have failed and there is a reasonable cause. And it is mentioned under the Quran that every declaration of talaq should be accompanied by a waiting period (Iddat) of 3 months for reconciliation. And if they do not agree to reconciliation, the husband can obtain a divorce by pronouncing talaq the third time, which is effective and irrevocable. Most of the dominant Muslim communities are Sunni (90%) and triple talaq is not valid, so it must be abolished.
CONTENTIONS OF THE RESPONDENT
•Counsel for the respondent argued that since Muslim marriage is a private contract, the concept of judicial review is unacceptable. And mention that Article 13 is something that does not cover personal laws. The court acquires jurisdiction only after Parliament has changed the secular practice (freedom of religion) under Article 25(2). And triple talaq does not discriminate against a Muslim woman and she can claim remedies for bad marriages as well. Special Marriage Act, 1954; Delegating the right of talaq to himself; Requires a large amount of honey.
•Furthermore, counsel said that although the Qur’an is silent on triple talaq, there is nothing in it that prohibits triple talaq. In addition, petitioners and#039; The opinion that the Qur’an is the only source of understanding of talaq is wrong because Sharia is based on the Qur’an, Hadith and the interpretation of scholars.
•Another lawyer argued that the question of constitutional validity of triple talaq does not arise because divorce is between two private individuals and does not involve state action. Because marriage is a private contract
The Constitution Bench of the Supreme Court struck down the practice of Triple Talaq or Talaq-e-bidda by a 3-2 majority and declared it unconstitutional under Article 14 of the Constitution of India. The Supreme Court directed parliament to pass a law banning the practice of triple talaq.
Justice Rohinton Nariman and Uday Lalit said that talaq-e-bida is governed by Islamic Personal Law (Sharia) 8, 1937. They held the practice unconstitutional because it is arbitrary. Justice Kurian Joseph agreed that triple talaq is against the Quran and therefore has no legal sanction. He wrote and what is considered bad in the Holy Qur’an cannot be good in the Sharia, and what is bad in theology is also bad in the law and quot;. They felt that this instant triple talaq is against both theology and law and just because many people follow it cannot be upheld.
A minority dissenting opinion by Chief Justice Khehar and Justice Abdul Nazeer held that such practice is an essential religious part of Islam. They justified that view by saying that many people follow that practice of talaq-e-biddat. Therefore, since this practice is sanctioned by religious denominations and followed by the vast majority of Muslims, it must be declared a constitutional and essential religious practice.
After this judgment, the Indian government passed the Muslim Women (Protection of Rights on Marriage) Act, 2019, commonly known as the Triple Talaq Act. This act criminalizes the use of instant triple talaq, making it a punishable offence. It prohibits a Muslim husband from pronouncing talaq on his wife by any means, be it oral, written or electronic. The law prescribes a prison sentence and a fine for violation of the provisions of the law.
Regarding the constitutional validity of Triple Talaq, the Hon’ble Judges were of different opinion on the matter. Some cited cases that were later overturned in other decisions and presented conflicting views. Some said that personal laws should replace the constitution, while others insisted that personal laws should be amended according to the provisions of the constitution. The Constitution of India is the supreme law that supersedes all other laws regardless of religious practices. Therefore, many provisions of the Indian Succession Act were amended to protect the interests of Indian women, including the right to retain property and the right to claim interest from non-paying relatives. Those provisions, not generally cited as a source of Islamic law, were held to be competent to protect the interests of citizens in Part 3 of the Constitution of India. However, the judgment rendered was fully justified and vindicated. However, in order to clarify the ambiguities in relation to the constitutional status of personal rights, the parliament must create specific guidelines, because in this case the decision to abolish the triple house was not made unanimously by the judges.
Although the ruling to protect Muslim women’s fundamental rights is historic and groundbreaking, there can still be disagreements between the public and the legal community. Instant triple talaq is no longer permitted under Indian law, as the majority of the bench decided that it violates both the Constitution and Islamic law.
This Article is written by Shaista Gazia student of Ajeenkya D.Y Patil University, Pune, Intern at Legal Vidhya.
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