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Case Comment on Shayara Bano v/s Union of India (2017) 9 SCC
1. Introduction
Shayara Bano vs. Union of India, better known as the Triple Talaq Case, gave India a historical judgement that declared the practice of Triple Talaq to be unconstitutional. The Triple Talaq judgement is widely regarded throughout the jurisdictions as a safeguard against social evils. Because of the astute and justified reasoning provided by the majority bench of the Supreme Court, India finally abolished the regressive and immoral practise of instantaneous Triple Talaq. This case is confined to the topic called Triple Talaq.
Shayara Banos case led to the ban of the Muslim practice of Triple Talaq. It is a process of divorce under the Sharia Law, where a Muslim man can instantly divorce his wife by pronouncing the word TALAQ three times, without any state intervention. The means of communication might be in any form i.e. written, oral, or maybe electronic, which further enhanced a Muslim womans vulnerability during this sort of unilateral and arbitrary divorce. Talaq is the Arabic word for Divorce.
There are three types of divorce under Sharia Law from which only talaq-e-biddat is irrevocable. It is mainly prevalent among Indias Muslim communities that follow the Hanafi School of Law. Under this law, Muslim women cant divorce their husbands whereas husbands can. Women need to move a court proceeding for divorce under the Muslim Personal Law (Shariat) Application Act,1937. For 15 years, Shayara Bano had been married to Rizwan Ahmed. In 2016, through oral triple talaq (talaq -e biddat), Rizwan divorced her. A Writ Petition was then filed by her in the Apex Court saying, As a violation ofArticles 14,15,21and25of the constitution, the performance of the practices of talaq-e-biddat, polygamy, nikah-halala should be held unconstitutional.
2. What is triple talaq?
Triple Talaq means a practice whereby uttering the word called Talaq thrice times the Muslim man can get divorced. With the advancement of technology, this concept was misused, where husbands send talaq through even voice notes, Whatsapp messages, and all. Here the means of communication could be in any form i.e., written, oral, or even electronic, which further enhances a womans vulnerability in this arbitrary and unilateral divorce1.
This controversial custom given that it is an intersection between gender identity and community has unsurprisingly left Muslim women prone to abuse and in a morbid state, especially given the socio-economic aspect where most of the women are financially dependent on their spouse and the added fear of this whimsical divorce leaves many cases of marital abuse unreported.
3. Description of Shayara Bano vs. Union of India
Instantaneous Triple Talaq is held unconstitutional by the constitutional bench. the Apex Court has held the practice of triple talaq (talaq-e-biddat), unconstitutional by a 3:2 majority. And recently, that is on 30th July 2019, the parliament of India, passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019, which declared the practice of triple talaq as illegal, and unconstitutional, and also made it a punishable act from 1st August 2019. The courts have finally brought justice to those women who have been a victim of Triple Talaq. The court has ensured that the ideas of equality especially gender equality are not mere theoretical ideologies.
4. Background of Shayara Bano vs. Union of India
A woman survivor of the grounds like domestic violence and dowry Harassment was divorced by her husband through Instantaneous triple talaq. She then filed the petition before the apex court stating that this Instantaneous Triple Talaq, Polygamy and Nikah Halala in the personal law of Muslims, are violating Art 14, Art 15, Art 21, and Art 25 of the constitution.
It was supported and criticised by many organisations. After that Instantaneous Triple Talaq went without legal validity and was held unconstitutional. This was already illegal because since the 1980s a number of judgements in High Court held that, for talaq to be legally valid, it must hold the following principles.
- Pronouncing for a reasonable cause
- Must become last by as many attempts for reconciliation held by facilitators representing both parties
These principles are not followed in most cases by the husband. So, it is already illegal. This case goes a long way to the case calledState of Bombay vs. Narasu AppaBench in Bombay HC, where it was said that personal law is a source of religion and not state because personal law is not covering the phrase laws in force. The SC for this showed a positive reaction inSri Krishna Singh vs. Mathura Ahir (1980).
Subsequently, it was reversed in the 1996 judgement of the caseMasilamani Mudaliar and others vs. The Idol of swaminathaswami Thirukoiland the 1997 judgement of Ahmedabad womens action group Union of India, it was again upheld. Shayara Banos case was vital not only for her immediate claims out also gave an opportunity to classify the personal laws constitutional status.
5. Facts of Shayara Bano vs. Union of India
The Supreme Court through a 5-judge bench held that this practice was unconstitutional on August 22nd, 2017 in a 3:2 majority.
Shayara Bano gets married with Rizwan Ahmed for 15 years. She was divorced by him through instantaneous triple talaq (talaq-e-biddat) in 2016. She then filed a writ petition on SC, on the ground that because they are violating Articles 14, 15, 21, 25 of the constitution, the following three practices should be held unconstitutional.
Talaqebiddat
Polygamy (multiple wives)
Nikah halal
Shayara Banos marriage with Rizwan Ahmed was for 15 years. She was one of those women who were survivors of domestic violence and dowry harassment. In 2016, she had been unilaterally divorced through instantaneous triple talaq. A writ petition was then filed by her before the Supreme Court.
The petition stated a declaration that the practices of Instant Triple Talaq, polygamy and Nikah Halala in Muslim personal law were illegal, unconstitutional, and in violation of several fundamental rights i.e., Articles 14 (equality before law), 15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience and religion) of the Indian Constitution.
- The Union of India as well as the womens rights organizations like the Bebaak Collective and the Bhartiya Muslim Mahila Andolan (BMMA) also supported Ms. Banos plea that these practices should be held unconstitutional. They even urged the court to declare that personal law was subject to Fundamental Rights.
- The All-India Muslim Personal Law Board (AIMPLB) has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law as these are essential practices of the Islamic religion and are protected under Article 25 of the Constitution.
- On 16th February 2017, Shayara Bano, the Union of India, various womens rights bodies, and the All-India Muslim Personal Law Board (AIMPLB) were asked by the court to introduce written submissions on the problems and issues of talaq-e-bidat, nikah-halala, and polygamy.
Nikah Halala also termed as tahleel marriage, in which a woman, through triple talaq was divorced, married another man, consummating the marriage, in order to remarry her former husband, she is getting divorced again. The Court asked to give written submissions for the above-said grounds like Talaq-e-biddat, Polygamy, and Nikah Halala from Shayara Bano, Union of India, various bodies supporting womens rights and AIMPLB (All India Muslim Personal Law Board) on 16th Feb 2017.
Union of India and Organisations specifically for Womens rights like Bebaak collective and Bhartiya Muslim Mahila, Andalon (BMMA) gave support on the ground that these practices are unconstitutional to Ms. Banos Plea. But AIMPLB made an argument statement stating that through Art 25 of the constitution, it is protected that these are some of the essential features of the Islamic religion and uncodified Muslim Personal Law is not subjected to the concept of constitutional judicial review under Article 13(2).
On 30th March 2017, the Supreme Court formed a 5-judge constitutional bench and accepted Shayara Banos Petition. Then on 22nd August 2017, by a 3:2 majority, the 5-judge constitutional bench held that the instantaneous practice of triple talaq is unconstitutional.
6. Issues in Shayara Bano vs. Union of India (2017) 9 SCC 1
- Whether the practice of talaq-e-biddat specifically mentioning Instantaneous Triple Talaq an essential practice of Islam?
- Whether the practice of Instantaneous triple talaq violate any fundamental rights of the constitution?
- Whether Triple Talaq protected under Act 25 of the constitution?
- Does Shariat Act give triple talaq Applicability?
7. Contentions
Arguments supporting Shayara Bano (petitioner)
Mr. Amit Chandha made an advent into the argument by arguing that Muslim personal law doesnt recognise a form of divorce called Triple Talaq. And also made a statement like the unilateral form of divorce and triple talaq had brought no quranic sanction. Divorce under Muslim law is in need of two concepts called reasonable cause and preceded attempt of reconciliation. He also argued like, because it is violating Article 14 and Article 15 of the constitution, it should be struck down. He gave a solution to the alternative form of divorce where irrespective of gender; the entire Muslim community will get divorced which is known as the Dissolution of Muslim Marriage Act, 1939.
8. Arguments supporting Shayara Bano by Mr. Salman Khurshid
He made an advent into the argument by saying that under Quran, after reconciliation attempts failed and with reasonable cause, if a man utters talaq 3 times, he can get divorce. And also, under Quran, it is mentioned that the pronouncement of each talaq should accompany a waiting period of 3 months (Iddat) for reconciliation.
And during the reconciliation period if they are not reconciling, the husband by pronouncing talaq the third time can get a divorce which is effective and unalterable. Also made an argument by saying that most of the Muslim communities which are prevailing are Sunni (90%) and they dont make triple talaq a valid one, so it must be declared void.
9. Arguments supporting respondents by Mr. Kapil Sibal (supporting AIMPLB)
- He made an advent by saying that since Muslim marriage is a private contract, the concept of judicial review is not acceptable. And also mention thatArticle 13is something that does not include personal laws. The court can access validity only after parliament made any changes to secular activities (freedom of religious practice) under art 25(2). And also, triple talaq is not discriminating against Muslim women and for bad marriages also, she can claim remedies under:
- Special Marriage Act,1954.
- By delegating the right to talaq to herself.
- Insisting high mehar amount.
10.Conclusion
Even though triple talaq was held unconstitutional by a 3:2 majority in the apex court, still there is an ambiguity that is prevailing on the part of the reasoning which is given and the same is proven by judges. Triple talaq was considered unIslamic and unconstitutional by Justice Nariman, Lalit, Joseph. Presently the law of the land is clear and it was abolished by the constitution of India and also to curb the menace the legislation was enacted by the government of India.
The landmark decision in the Shayara Bano case is unquestionably a step toward equality, and it has provided a foundation for future personal law and social amendments. This decision in Shayara Bano vs UOI also dealt with the minority in a very viable manner, which is a step toward secularism.
Although the primary focus was not gendered justice, it will have significant positive implications for advancing womens rights and gender equality in India. It is expected that this judgement will be viewed objectively and will assist Muslim women in living a better and more secure life as guaranteed by the law of the land.
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 benchs viewpoint.
11.CITATION
1. Introduction Of Case Comment on Shayara Bano v/s Union of India (2017) 9 SCC 1 Is Available At
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2. History Is Available At
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3.RELEVANCE OF THE REPORT IS AVAILABLE AT
https://indiankanoon.org/doc/115701246/
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5. CONCLUSION IS AVAILABLE AT
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6. IDBI
