Assignment on Triple Talaq

Name of the case: Shayara Bano v. Union of India

Citation: AIR 2017 9 SCC 1 (SC)

Date of Judgment: 22nd August 2017

Parties Involved: Sharayar Bano and others, All India Muslim Personal Law Board (AIMPLB), Union of
India

Bench: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Niraman, Justice
Uday Lalit, Justice K.M. Joseph.

Laws and Acts applied in the case: Muslim Personal Law (Shariat) Act 1937

On 22 August 2017, the Supreme Court took a landmark decision on the constitutional validity of
“Talaq-e-Biddat” popularly known as “Triple Talaq” which is one of the three males who initiated
divorce in the Muslim community, the other two being “Talaq ahasan” and “Talaq Hasan”. As the
name suggests in this form of divorce, where a Muslim man can instantly divorce his wife after
repeating the word “talaq” in one sitting, without any state intervention. Here the means of
communication could be in any form i.e., written, oral, or even electronic, which further enhances a
woman’s vulnerability in this arbitrary and unilateral divorce. 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. Thus because of the pressing need to address the
above issue the Supreme Court in this case of Shayara Bano v. Union of India declared this custom
unconstitutional by a majority of 3:2 ratio. This ultimately will have a ripple effect on various aspects
of Constitutional Law, especially in the context of Fundamental Rights and its relation with the
personal laws of the country, while also having an impact on the social aspect of gender justice
which unfortunately the judgement does not discuss in detail as it mainly as it focuses mainly on the
validity of Triple Talaq in context to marriage as an institution
Talaq-e-biddat
 If a man belonging to the religion of Islam pronounces talaq thrice either orally or in written
form to his wife, then the divorce is considered immediate and irrevocable.
 The only way to reconcile the marriage is through the practice of nikah halala, which
requires the woman to get remarried, consummate the second marriage, get divorced,
observe the three-month iddat period and return to her husband.

The Triple Talaq Bill

 It is applicable in the whole of India but it is not extended to the State of Jammu & Kashmir.
 Any pronouncement of “talaq” by a Muslim husband to his wife in any manner, spoken or
written, will be void and illegal.
 Any Muslim husband who communicates the “talaq” orally or in writing may face the
punishment of up to three years in jail. The punishment may be also extended.
 If a Muslim man pronounces “talaq” to his wife, then the woman and her children are
entitled to receive an allowance for subsistence. Such an amount can be determined by a
Judicial Magistrate of the First Class.
 A Muslim woman is entitled to the custody of her minor children even if her husband has
pronounced “talaq” to her.
 The offence is also compoundable (i.e., the parties may arrive at a compromise), if the
Muslim woman insists on the same and the Magistrates allows certain terms and conditions
which he may determine.
 A person accused of this offence cannot be granted bail unless an application is filed by the
accused after a hearing in the presence of the Muslim woman (on whom talaq is
pronounced) is conducted and the Magistrate is satisfied with the reasonable grounds for
granting bail.
Analysis
Personal Law and Constitutional Law
On the face of it, the Court’s decision was the right one to take but the approaches
adopted by the majority judges seem to differ which gives rise to the debate on how to
look at personal law in a secular country like India. It raises the question at what point is
it acceptable for the Judges to make decisions on the constitutionality of an uncodified
practice like triple talaq. 

Justice Khehar does not look at it from the aspect of Muslim law but sees it completely
from the point of view of the constitution and if it can be held valid under the same. To
which Justice Khehar replies on the similar lines of the opposition’s argument that
personal law was not a state enacted law and only state enacted law can be subjected
to Fundamental Rights. However, the major flaw which can be seen in the following
argument that how a practice which even though is not codified under the personal law
is authorised and enacted by the State not be under the scope of the law of the
sovereign.10

Now looking at Justice Niraman’s argument we find that he does consider triple talaq to
be “law in force” as per Article 13. With a very reasonable argument that since Section
211 of Muslim Personal Law (Shariat) Act 1937 gives talaq in general authority so it
automatically comes under the supervision of the state laws.

Thus the obvious question that comes before us here is, are any relevant fundamental
rights being violated, specifically Article 14 and Article 15 which cover the Right to
Equality or can it be saved by fundamental rights like the Right to Religion i.e. Article 25.

Right to Equality under Article 14 

Violation of Article 14 can be not only found out by test of reasonable classification 12 but
also by the use of arbitrariness13. Justice Niraman holds the practice mainly void under
arbitrariness. However, the conclusion at which he arrived seems to have been not
based on the inequality of the two genders but the religious-based conception of triple
talaq to be arbitrary. He does not necessarily show how the inequality per se exists but
merely points out that this form of divorce is arbitrary because there is no mode of
reconciliation. As pointed out by many scholars of the problem of arbitrariness it just
shifts the focus more on arbitrariness rather than pointing out where the inequality
exists.14  
Right to Gender Equality under Article 14 and Article 15 
What is majorly missing in the judgement is the in-depth analysis of gender inequality.
Surprisingly even the petitioners did not bring out the inherent discrimination between
the husband and wife and majorly focused on the practice of triple talaq being un-Islamic
rather than bringing out the ills of triple talaq. This created a political situation of cultural
minority versus modernity debate. As minority groups like All India Muslim, Personal Law
Board saw this as a question of their Muslim identity. This case could have seen almost
the same result as the case of Shah Bano case 15. Where the judgement delivered by 5
judges Hindu males, triggered the Muslim community by a plea to invoke Uniform Civil
Code and the adverse comments made by the court against Prophet and Islam. All of
this led to the drawing of sharp boundaries where Muslim women were called on to
choose between their religion and their gender claims. 16 ultimately this led to Shah Bano
completely renouncing the divorce maintenance. Fortunately, nothing similar to those
lines has occurred in this case. However, maybe in the fear of not wanting a similar
outcome the judgement almost ended up completely ignoring such an important aspect
of equality. Therefore while giving the judgement concerning equality marriage as an
institution was given a higher priority. 

Right to freedom of religion 

As far as religious aspects go the Justice Niraman did not agree that it would be under
the protection of Article 25 as it only protects those practices which is an integral part of
the religion which many scholars and commentaries on the same in Sharia have said is
otherwise.  

While discussing triple talaq especially the religious aspect of the case Justice Joseph
who although agreed with Justice Niraman but took a different route to achieve the end
goal. He disagreed with Justice Niram that it was not upon judges to decide on religious
matters. Justice Joseph goes on to say that when a private law is unclear on a particular
issue it is left for the judge to decide what the law means to say. Therefore in this case
the judge has to decide on what is the given scenario of the particular practice or custom
as no one else can. He looked at this case completely from the cultural point of view and
chose to ignore the constitutional aspect as according to him only the legal sanctity of
triple talaq in Muslim personal law needed to be determined. 

Therefore what we can see is that Justice Joseph tactfully reaches the same outcome as
many without actually having to enroute through constitutional rights, secularism or
uniform civil code. He mainly relies on commentaries on Muslim Law and judgements
relying on the commentaries on Muslim law by Muslim Judges – which was key in
invalidating the triple talaq and maintaining a politically viable judgement, without
causing a lot of communal backlash or tension. 17

Conclusion 
It is no doubt that the triple talaq judgement has become a landmark judgement
especially on the aspect of private law in this country. It has given us various aspects on
how to deal with them especially Justice Joseph’s “culturally grounded” judgement. This
judgment showed that the Supreme Court has learned from its past mistakes on
personal law. Even though it lacked to give clarity on gender justice and inequality in
personal laws and how they are to be treated. It also did not address if “setting aside”
triple talaq meant that it had no legal effect at all or three utterances meant one.
Therefore all said and done, it is a move towards equality and has given a backbone to
how future personal law and social amendments need to take place. This judgement
also handled the minority in a very viable way which is a step toward secularism. It is
hoped that this judgement will be taken in the bright light and will help Muslim women to
live a better and more secure life as guaranteed by the law of the land.