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Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

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This Case Summary is written by Krithika CJ, a student of Bishop cotton women’s Christian law college

INTRODUCTION:

On 22nd of August in 2017 the Supreme Court of India pronounced Muslim separation through triple ta-laq illegal. Via triple (talaq–e–biddat) Muslim men could separate from their spouses in a flash and without state intercession by articulating “talaq” threefold. The case had been brought under the watchful eye of the court by the applicant Shayara Bano and other women who had been separated along these lines. Diverse Muslim ladies’ gatherings had interceded to help them. On the result, the court was parted three to two. The three adjudicators in the majority regarded triple talaq invalid, however utilized diverse thinking to come to their end result: Justices Rohington Nariman and U. U. Lalit held that the 1937 Muslim Personal Law (Shariat) Application Act, to the extent that it alludes to significantly increase talaq, disregarded Article 14 of the Indian constitution – the right to equality. Justice Kurian Joseph rather contended that triple talaq was not a substantial practice in Islam and was subsequently unlawful. The minority observance, held by Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, was that however triple talaq was undesired, the courts couldn’t strike it down, and just the parliament could direct on the matter. The judgment is a milestone case in the Indian ladies’ development’s agitating for additional rights under the umbrella of personal laws. From there on 28th December, 2017 Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017. On 9th August, 2018 alterations to the Bill was circled in the Rajya Sabha and on 10th August, 2018, the Chairman, Rajya Sabha announced that the Bill couldn’t be introduced because of absence of concurrence and from there on 19th September, 2018, it is said that the statute being referred to was proclaimed. Ultimately the Muslim women (protection of rights on marriage) Act, 2019 was passed by the parliament, as per this, a Muslim man is not allowed to divorce his wife abruptly by way of ‘Instant divorce’ as it has become unconstitutional and hence illegal. 

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice.” — Ravishankar Prasad, Former Minister of Law and Justice of India. 


FACTS INVOLVED IN THE CASE:

Shayara Bano, spouse of Rizwan Ahmad was hitched for a period of 15 years. Her significant other articulated ‘talaq’ multiple times within the sight of two witnesses and conveyed ‘talaq-nama’ on 10/10/2015 to her. The spouse tested something very similar before the Supreme Court contending that these three practices – triple talaq, polygamy and nikah halala were illegal because of which the sacred legitimacy of such practice was called before an established seat of the apex court comprising of 5 adjudicators from various grounds. She guaranteed that these practices were violative of a few given under the Constitution of India including; 

a) Article 14 which states, “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

b) Article 15(1) which states that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 

c) Article 21 which states that no person shall be deprived of his life or personal liberty except according to procedure established by law, and 

d) Article 25 which guarantees freedom of religion. 

MATTERS IN QUESTION:

1)Regardless of whether the act of talaq-e-biddat (explicitly immediate triple talaq, a fundamental act/practise of Islam). 

2)Regardless of whether the act of triple talaq abuses any fundamental rights. 

RELIGIOUS SUBSTRATUM OF THE MATTER:

The concept of divorce has been regarded as a natural sequel to a marriage. However, divorce was not recognised by all communities in olden days. The general belief that marriage is indissoluble is no longer welcome by the 21st century. It was merely granted as a matter of necessity which hold special circumstances and aims at bringing about a sense of equality between a man and a woman. The ideals may differ from one religion to other but it has persisted in-spite of acute disagreement, in order to set a balanced approach to marital life and conjugal relations. 

Under the Muslim law, a marriage is called off either by the death of either of the spouse or by divorce. The Quran grants permission somewhat in view of some face to the traditions and part of the way to empower men to dispose of a terrible association. The Prophet gave to the woman the right of obtaining separation on reasonable grounds. The Prophet is reported to have said that if a marriage is detrimental to a woman, then it can be allowed to be broken off. 

The bone of contention in this case was about one of the modes of talaq which is ‘Talaq-e-biddat’, recognised among the Hanafis which could be affected only by the husband. The effect of irrevocability itself makes the practise sinful as observed by Islamist jurists. It was said to be introduced by Omeyyads in order to break free from the severity of the legal repercussions. In the case of Fazlur Rahman v. Aisha, the validity of this type of divorce was held questionable and argued that it goes against the Quranic precepts. Furthermore, in excess of 20 Islamic nations including Egypt, Sudan, Morocco, Iraq, even Pakistan and Bangladesh, are refreshing Sharia laws, and have forced a directive against the utilization of ‘triple talaq’ by spouses. In Turkey and Cyprus, unilateral divorce also has necessary court intercession.

In Gazula Dasaratha Rama Rao v. State of A.P. Das J, said, “Even if there was a custom which has been recognised by law … that custom must yield to a fundamental right.” However, India is a country that has held customs to be sacrosanct but only upto a limit that those do not supersede or override the effects of statutory laws. 

In the case of A. Yousuf Rawther v. Sowramma, Justice V. R. Krishna Iyer observed that, “The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict divorce does not accord with Islamic injunctions … “ 

Hence, there was a decisive understanding that talaq has to be on the basis of good will and must not hold any malicious intent to outrage the dignity of a Muslim woman. 

CONTENTIONS OF THE PETITIONERS:

Article 14 of the Indian constitution expressly goes on to say that the state shall not deny equality to any person before the law and ensures equal protection for all within the ambit of the country’s territory. This article holds the essence of the right to equality. It not only removes discrimination but also implies that no individual shall exercise special privilege than the other. In a philosophical sense, equality is a dynamic norm. 

In this context, the practise of talaq-e-biddat, allowed a male spouse an extended right to cut the ties of a marriage, which clearly violates the basic principle of article 14 of the Indian constitution. A female spouse had no say in this particular matter and yet again it goes against the protection of all persons by Article 14. Furthermore, it infringes the right guaranteed under clause (1) of Article 15, which prohibits any kind of disparities on the basis of sexual orientation. This established an element of prejudice and unjust distinction of the female spouse in a marriage under Islamic law and made the way clearer to empower the Muslim women and change the social attitude of the community entirely. 

“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” 

In Rukia khatun’s case, the division bench stated that the correct law of talaq as ordained by Holy Quran is that (a) Talaq must be for reasonable cause, and (b) Talaq must be preceded by an attempt of reconciliation between the husband and the wife and two arbiters. Thus, the apex court of India has disapproved the instant divorce followed in India. 

SETTLEMENT ARRIVED AT:

Justice R.F. Nariman and Justice U.U. Lalit saw that applying the trial on arbitrariness of the case within reach, plainly triple talaq is a type of talaq which is itself considered as something inventive for example it’s anything but Sunna, being a sporadic type of talaq. The Hanafi school which perceives this type of talaq, explicitly expresses that however legitimate it is corrupt in that it causes fierceness of God. Since triple talaq is moment and unalterable/irrevocable, clearly any endeavour at compromise among a couple by two referees from their families, which is vital for save conjugal tie, can’t at any point happen. It is additionally certain that this type of talaq is plainly subjective in sense that conjugal tie can be broken eccentrically and fancifully by Muslim man with no endeavour at compromise in order to save it. This type of ‘talaq’ must, accordingly, be held to be violative of key right contained under Article 14 of Constitution of India.

Justice Kurian Joseph likewise agreed the assessment of the over two Judges. He says that the section in Holy Quran identifying with talaq is very clear and unambiguous. Holy Quran has credited holiness to execution of marriage. Notwithstanding, he believes that in amazingly unavoidable circumstances, talaq is passable. Yet, an endeavour for compromise should be made and in the event that it falls flat, disavowal are Quranic fundamental strides before talaq accomplishes irrevocability. In triple talaq, this entryway is shut, thus, triple talaq is against fundamental precepts of Holy Quran and subsequently, it disregards Sharia.

Then again, Chief Justice Khehar and Justice Abdul Nazeer offered a contradicting input holding that religion involves confidence and not of rationale. It’s anything but open to court to acknowledge populist approach, over training (followed for as far back as 1400 years) which comprises indispensable piece of religion. Constitution permits supporters of each religion, to follow their convictions and strict customs. Constitution guarantees devotees, everything being equal, that their lifestyle, is ensured and would not be liable to any test, despite the fact that they may appear to others unsuitable, in this day and age and age. Constitution broadens this assurance, since confidence comprises strict cognizance of devotees. It is this strict awareness which ties adherents into independent substance. Constitution attempts to ensure and save, convictions of every one of independent substances under Article 25.

EXPOSITORY EPILOGUE:

Great amount of sanctity has been the moral foundation to the concept of marriage in Indian context. Yes, there are certain contradictory views in today’s society.  Social reforms are essential for growth and progress in any country. Even in the Hindu culture, the bond of marriage is considered to be inseparable. The husband and wife are regarded as one. The ideals of Ram and Sita from the great Indian epic – Ramayana are still followed. Community and change within a certain framework of principles and values are some of the basic tenets of a modern society. Therefore, it becomes a collective responsibility of all of us to shun undesirable social practised that have existed for centuries. Problems are not cured wholly by legal reformation but also requires some inward introspection of our own thoughts. 

Through time immemorial women have often been targeted atrociously. In this purview, the sad saga of the Muslim women was paid attention. It is the moral and legal duty of the people as well as the judiciary. Triple talaq has been termed ‘illegal’ and ‘unconstitutional’ and hence, blocks the escape routes for the accused. It sets an exemplary precedent which has similar circumstances and gives weightage to the victim’s plight. 

CONCLUSION:

It is no uncertainty that the triple talaq judgment has become a landmark judgment particularly on the part of private law in this country. It has given us different various viewpoints on the best way to manage them particularly Justice Joseph’s “socially grounded” judgment. This judgment unquestionably showed that the high court has gained from its previous slip-ups on close to home law. In spite of the way that it needed to give lucidity on sex equity and imbalance in close to home laws and how they are to be dealt with. It likewise didn’t address if “saving” triple talaq implied that it had no legitimate impact at all or three utterances implied one. Hence completely said and done, it’s anything but a move towards correspondence and has given a spine to how future individual law and social changes need to occur. This judgment likewise dealt with the minority is an entirely feasible way which is a stage toward secularism. It is trusted that this judgment will be taken in the brilliant light and will help Muslim lady to live a superior and safer life as guaranteed by the tradition that must be adhered to.

Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

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This Case Summary is written by Lavanya Ajaykumar Panicker, a student at DY Patil Deemed To Be University School of  Law, Nerul, Navi Mumbai

SYNOPSIS

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice” – Union Law Minister Ravi Shankar Prasad

The whole case commentary of Shayara Bano v. Union of India and Ors is a landmark case examines the case in which a constitutional court overturned a 1,400-year-old tradition with a 3:2 majority. The custom of triple talaq, which allowed a Muslim husband to give his wife an instant and irreparable divorce, was declared unlawful. The current decision takes into account a slew of earlier cases in which this problem has been challenged. However, the constitutional legitimacy of Triple Talaq has never been questioned before a Constitution Bench of five Supreme Court judges. Another unique feature of the whole case was that the minority ruling, in the interest of justice, enjoined the enjoyment of Art. 25 under Art. 142 of the Constitution. Even if the Court was divided on the law, it was adamant about ending the antiquated and disgusting practice that even Islam despises, even though the degree of transformation this ruling would bring about is unknown.

BACKGROUND

“Triple Talaq is not integral to religious practice and violates constitutional morality.”

The Supreme Court’s 5 Judge Bench issued its judgement in the Triple Talaq Case on August 22, 2017, ruling the practice unconstitutional by a 3:2 majority. Shayara Bano’s was Rizwan Ahmed’s wife for 15 years. He divorced her in 2016 by an instantaneous triple talaq called ‘talaq -e biddat’ and was subsequently given a ‘Talaqnama.’ She asked the Supreme Court to uphold three practises talaq-e-biddat, polygamy, and nikah-halala unconstitutional since they contradict Articles 14, 15, 21, and 25 of the Constitution. On February 16, 2017, the Court requested reasoned responses from Shayara Bano, the Union of India, different women’s equality organization, and the All-India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy.

FACTS OF THE CASE

“In the name of empowerment, you (the government) have given nothing but a criminal case to women…the aim of the bill is not to empower Muslim women but to penalise Muslim men” -Congress MP Sushmita Dev

Triple Talaq is not accepted by all Muslim schools of thought; only the Hanafi School of Sunni Islam considers it to be “permissible even if immoral.” Sarabai v. Rabaibai, a case decided five years before the Muslim Personal Legislation Sharait Act 1937, found that “it is a good law, but terrible is philosophy.” Justice Krishna Iyer, on the other hand, was the first to express worry about this habit.

Shayara Bano filed a petition with the Supreme Court, asking for a writ pronouncing the divorce void ab initio since it infringed on her constitutional freedoms. As a result, the constitutional legitimacy of Triple Talaq was brought into doubt before a Supreme Court Constitution bench of five judges comprising of Chief Justice JS Khehar, UU Lalit, RF Nariman, Justice Kurian Joseph, and Abdul Nazeer. In two Guwahati High Court judgments, Justice Baharul Islam dismissed the claim that triple talaq was legal even if it was logically sound. Various judgements in favour and against this tradition were issued during the next two decades. One of the most major matters was Shamin Aru v. State of Uttar Pradesh in 2002, which laid forth the requirements for a legitimate talaq. Although it did not explicitly address the triple talaq, it did engage in a discussion over what constitutes a lawful talaq. This case was eventually cited as a binding precedent to establish why triple talaq is unconstitutional.

Finally, in 2015, two supreme court judges acknowledged the need for it when addressing with Hindu women’s equality to coparcenary property and filed a Suo Moto writ suit.

ISSUES RAISED

“Irrespective of faith, women inherently do not want to divorce without a cause. Be it a Christian, Hindu, and Muslim, women mostly want to save their marriage. Men, on the other hand, have been seen to divorce women over most trivial cases. Men cannot be given supreme right to summarily divorce his wife and abandon her.” -BJP MP Meenakshi Lekhi

Here on matter, there are three judgments: Minority Judgments, written by CJI Khehar and J. Nazeer; two Majority Judgments, one written by Kurian J. and the other authored by Nariman Jon on behalf of himself and Lalit J. The issues in the case are laid out in a methodical manner on, but for the purpose of brevity and clarity, we’ll combine them and simplify them to the following:

  1. Whether the practice of talaq-e-bidat (specifically – instantaneous triple talaq) an essential practice of Islam?
  2. Whether the practice of Triple Talaq violates any fundamental right and is in accordance with part III of the constitution of India?
  3. Whether the practice of ‘Triple Talaq’ is protected bb the virtue of Article 25 of the Constitution of India?

FINDINGS AND REASONING

The court said the practice is “unconstitutional”, “arbitrary” and “not part of Islam”.

  • Talaq-e-biddat is an irrevocable way of declaring Talaq or divorce, by either saying it three times in a row or by saying it once and for all, that is I Talaq you irrevocably. This type of Talaq is distinguished by the fact that it takes effect instantly and is irreversible. Furthermore, Triple Talaq can only be used by a husband towards his wife, not the other way around. The Quran condemns the practise of Talaq, but it condemns even more the irreversible and arbitrary form of divorce in which the husband is not required to offer a cause for the divorce and in which the couple is not allowed to reconcile. Furthermore, Justice Kurian J relied on these cases: Shamim Ara, Masroor Ahmed, and Jiauddin Khan v. Anwara Begum by Najarul Islam J in determining that Triple Talaq is unIslamic. The essentiality test identifies if a behaviour is a necessary element of one’s religion. CJI Khehar and Justice Nariman each took a different approach.

CJI Khehar cited the Sardar Syedna Taher Saifuddin Saheb case, which stated that whether a practise is necessary or not must be determined from the perspective of the members of that community, while Nariman J. cited Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, which stated that whether a practise is essential or not must be determined from the perspective of the members of that community. According to this definition, an essential practise is one that is based on the religion’s basic ideas; it is a bedrock upon which the religion’s edifice is constructed, without which the religion’s intrinsic nature would alter. It is a permanent and necessary component of the religion that cannot be removed or added later. As a result, it would be ridiculous to claim that what is immoral in one group is equally important in another.

  • It was underlined that every citizen’s fundamental right to equality, guaranteed by Article 14 of the Constitution, must be construed to include equality among women of diverse religious groups. Gender equality, equity, and justice, it was argued, were ideals that were inherently entwined within the precedents incorporate to everyone. The conferral of socioeconomic status predicated on patriarchal structures, which places womenfolk at the vulnerability of men, cannot be supported within the ambit of Part III of the Constitution’s fundamental rights. Articles 14 and 15 of the Constitution, it was argued, ban sexual discrimination in addition to equality. Discrimination on the basis of sex was said to be specifically forbidden within Article 15. It was argued that a woman’s right to human dignity, social regard, and self-worth were essential aspects of Article 21’s right to life. Gender balance was argued to be a constitutional aim envisaged by the Constitution’s authors. In response to a question on Article 51A(e) of the Constitution, it was stressed out that one of the proclaimed fundamental tasks included in Part IV of the Constitution was to ensure that women were not exposed to disparaging behaviors that harmed their dignity. Gender parity and women’s dignity were emphasised as quasi. It had already been pointed out that women made up half of the country’s population, and that inequity against women must imply broad gender discrimination, and so the practise is in violation of Part III of the constitution.
  • In terms of religious characteristics, Justice Niraman did not agree that it would be protected by Article 25 since it only protects activities that are an important part of the religion, which many academics and commentators on Sharia have stated is not the case. Although analyzing triple talaq, particularly the religious side of the case, Justice Joseph, while agreeing with Justice Niraman, chose a different path to reach the same conclusion. It argued with Justice Niram that courts should not make religious decisions. In fact, Justice Joseph goes so far as to declare that where a private law is ambiguous on a specific subject, it is up to the court to determine what the legislation actually means. As a result, the court in this case must decide what the provided circumstance of the particular practice or custom is because no one else can. He examined the issue entirely from a cultural perspective, ignoring the constitutional component since he believed that only the legal sanity of triple talaq in Muslim personal law remained to be decided.

CONTENTIONS

After examining all of the official testimony, the Supreme Court divided them into two primary issues:

  1. Is instant Triple Talaq a significant holy practice of Islam? and Is instant Triple Talaq an essential religious practice of Islam?
  2. Is Triple Talaq infringing on the Indian Constitution’s Fundamental Rights?

The subject of whether the Triple Talaq is vital to religious practise arose because the Hon’ble Apex Court cannot dispute or modify any religious practise if it is a significant religious practise. So, if the contested activity is not a fundamental religious practise, the Supreme Court can rule on it and either repeal, amend, or construct it.

CRITICAL ANALYSIS

It is “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”.

The Shayara Bano v. Union of India judicial decision has become a watershed moment in Indian judicial history. Therefore, with this decision, the Supreme Court of India recognised by a majority that, in the event of a disagreement, the basic rights enshrined in the Indian Constitution take precedence over the practices outlined in the Personal Laws. It is critical to understand that the practise of Instant Triple Talaq was not a traditional custom like the other forms of values that have been observed since Islam’s foundation. It was a later addition, resulting from a departure from the original procedures. As a result, the Apex Court’s Hon’ble Judges were correct in declaring this activity to be a non-essential religious practise under Shariat Law.

It is important to highlight that by ruling Talaq-e-Biddat to be illegal, the Hon’ble Apex Court has safeguarded Muslim women’s basic rights who have been subjected to the wrath of this practice. The country was able to rid itself of yet another societal problem as a result of this ruling.

However, the fact that cases of Triple Talaq have been reported even after this ruling demonstrates a lack of legal understanding among the general population. As a result, once a judgement is rendered, legal knowledge about it should be widely disseminated, and individuals should be made aware of the consequences of failing to comply with the decision. Everyone should be aware of their rights, as well as their obligations and duties.

FINAL VERDICT

Eventually, the Hon’ble Supreme Court, by a 3:2 majority, ruled the practise of Instant Triple Talaq to be unconstitutional and instructed the Parliament to adopt legislation in this respect. It cleared the path for the Muslim Women Protection of Rights on Marriage Act, 2019, to be passed in July of this year. It ruled Triple Talaq to be invalid and illegal, whether in writing or electronic form.

CONCLUSION

“Implementing the Triple Talaq Bill in its current form will be a disaster as many men, fearing criminal prosecution, may simply abandon their wives rather than divorcing them.” -BJD MP Rabindra Jena

This judgement is a watershed moment in the protection of women of minority religions in a country whose personal laws aren’t in line with core constitutional rights. The measure not only makes triple talaq illegal, but it also punishes men who seek to desert their spouses through it. The ruling is a real illustration of how democratic ideals like as equality, liberty, and endless others would not be stifled by any worldview, whether religious or not.