NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

SUBJECT-FAMILY LAW- I

TOPIC: ANALYSIS OF TRIPLE TALAQ FROM THE PERSPECTIVE OF

SHAYARA BANO CASE

SUBMITTED BY: SUBMITTED TO:

ROHIT KUMAR (1014) DR. SANGITA LAHA

SEMESTER: IV (A) ASSOCIATE PROFESSOR

-CUM DEAN

1
 ANALYSIS OF TRIPLE TALAQ FROM THE PERSPECTIVE OF
SHAYARA BANO CASE

SYNOPSIS

INTRODUCTION

The Supreme Court of India (‘SC') issued an order in Shayara Bano v. Union of India (‘Shayara
Bano') that invalidated the practice of instant triple talaq or talaqe-biddat, which had been
widely used by Muslim husbands to end their marriages instantly and irreversibly. The decision
received massive applause, specifically from women's rights organizations, because it was seen
as a critical step in achieving a gender-just society.

It then follows the development of Indian court jurisprudence in the areas of personal laws and
religious freedom. The paper focuses on two points: first, that Indian courts have been
inconsistent in their approach to personal laws, and second, that the courts, through the doctrine
of essential religious practices, have not only interjected into the domain of personal laws, but
have also attempted to fashion religion-specific personal laws according to the adjudicating
court's understanding of religion. In light of the subsequent discussion, the article analyzes the
broader subject of personal law reform and how it should be implemented in a multi-religious
society like India.

RESEARCH OBJECTIVE
• To analyse the triple talaq issue in contemporary scenario.
• To know the reason behind criminalization of Triple Talaq.
• To know the jurisprudential perspective of Shayara Bano case.

RESEARCH QUESTION

• What is Talaq - e- Biddat

• What are the issues in Triple Talaq Bill ?
• Why the government criminalised the Triple Talaq ?

2
 RESEARCH HYPOTHESIS
ALTERNATE HYPOTHESIS: The condition ( TRIPLE TALAQ ) prevails in the present
scenario.

NULL HYPOTHESIS: The condition ( TRIPLE TALAQ ) doesn’t prevails in the present
scenario.

RESEARCH METHODOLOGY
a. The Methodology adopted by the researcher: Doctrinal Research
b. Sources of Data: For this research, the author of the present article will depend upon
Secondary Sources of Data. The researcher would rely on the books, statutes, laws,
regulations, cases, judgements and articles discussing various websites and newspaper
articles.

LITERATURE REVIEW
Like other researchers, the researcher in the present study will also analyze the previous
literature available on the given topic, which is of some relevance in the present study, some
of them are:

(Abbas, Shirin) Talaq Bill, based on the petition filed by Sharaya Bano and several other
petitions as also the suo moto PIL by the Supreme Court, needs to be viewed under the scanner
of intersectionality. Under this PIL the apex court has hinted that certain Islamic Personal Laws
practice gender discrimination, thus violating the rights of women as enshrined in the Indian
Constitution. The study deals with the question of Triple Talaq in the light of the recent petition
filed in the Supreme Court for declaring such talaq invalid.

(Kushwaha, Prateek; 2018) Another research on the related topic deals with the most critical
journey of triple talaq and issues related to Muslim family law. This paper also ascertains
various interpretation since Muslim law is not codified and subject to Sharia law. Covering the
move of Judiciary from Shah Bano to Shayara Bano and exhibiting the transformations / Up &
downs in the development of Muslim personal law in India. This paper also highlights “The
Muslim Women (Protection of Rights on Marriage) Bill, 2017” along with aim and objectives
of the bill and concludes with some interesting analyses.

(Parveen,Shakera; 2018) The study was carried out with the following objectives: (i) to find
out the opinion of madarsa girls at higher secondary level on the need for Instant Triple Talaq

3
bill to empower muslim women. (ii) to find out the opinion of school girls at higher secondary
level on the need for Instant Triple Talaq bill to empower muslim women.(iii) To find out the
significant difference between opinion of higher secondary school girls and Madarsa girls on
the need for Instant Triple Talaq Bill to empower Muslim women in MAU (U.P). Findings of
the study are discussed in detail in the research study. Due to the practice of Instant Triple
Talaq by few, a Muslim woman lives under a constant feeling of uncertainty. It is time that
Rational and Enlightened elements from Muslim community should come forward to analyze
the sensitive issues of Islam.

CHAPTERIZATION
CHAPTER 1
Concept of Triple Talaq.

In a legal sense, it refers to the husband's use of suitable language to dissolve the marriage. In
other terms, talaq is the husband's rejection of the marriage in line with Islamic law's procedure.

In Islam, there are two types of talaq (divorce):

1. Talaq-ul-Sunnat
2. Talaq-ul- Biddat

Status of Triple Talaq in India

The muslim lived in India also practice the triple talaq. It allows any muslim man to lawfully
divorce his female partner by uttering the word talaq three times in oral, written or currently in
electronic form. In this a man did not need to cite any reason for the separation and the wife
need not have been present at the time of promulgation.

4
 CHAPTER 2
The case of Shayara Bano

On 16th February 2017, the Court asked Shayara Bano, the Union of India, various women’
rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give written
submissions on the issue of talaq-e- bidat, nikah-halala and polygamy. The Union of India and
the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan
(BMMA) supported Ms Bano's plea that these practices are unconstitutional. The AIMPLB has
argued that uncodified Muslim personal law is not subject to constitutional judicial review and
that these are essential practices of the Islamic religion and protected under Article 25 of the
Constitution.

After accepting Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional bench
on 30th March 2017. The first hearing was on 11th May 2017. On 22nd August 2017, the 5
Judge Bench pronounced its decision in the Triple Talaq Case, declaring that the practise was
unconstitutional by a 3:2 majority.

CHAPTER 3
Legal alternatives

There has been plethora of cases both in the Supreme Court and several high courts declaring
instantaneous triple talaq to be invalid.

CHAPTER 4
Not another Shah Bano

The best example of confrontational politics leading to actual victimization of the woman in
question was the Shah Bano case.The case pertained to maintenance to the Muslim wife after
talaq had been pronounced.

CHAPTER 5
Suggestions and Findings

5
For a more comprehensive study on the perception of Triple talaq, not just Muslim girls and
their mothers should be considered for the study but Muslim males should also be made a part
of this study in order to get a more in-depth understanding of Muslim males and females on
this issue. With increased sample size, a clearer picture of the perception on Triple talaq would
come to the forefront.

Conclusion

Here we stand confronted by some of the most intractable problems of the conflict of rights
where self--chosen sedimentation of identity within a religious tradition is at odds with forms
of universalistic modes of de-traditionalisation of the politics of difference demanding gender
equality and justice.32 Here comes to the recue the conceptualization of inter-sectionality were
we can better acknowledge and ground the difference among us and negotiate the means by
which these differences will find expression in constructing group politics. So basically in case
of Muslim women article 14, 15 or 21 cannot be seen to give a universal definition of equality
or life applicable to all women. The conception of equality must also be informed by the
difference in experiences of the women.

6
NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,
RANCHI

SUBJECT- FAMILY LAW- I (RESEARCH PAPER)

TOPIC: ANALYSIS OF TRIPLE TALAQ FROM THE PERSPECTIVE OF

SHAYARA BANO CASE

SUBMITTED BY: SUBMITTED TO:

ROHIT KUMAR (1014) DR. SANGITA LAHA

SEMESTER: IV(A) ASSOCIATE PROFESSOR

-CUM- DEAN

7
TABLE OF CONTENTS
Introduction ................................................................................................................................ 2
Research Objective ................................................................................................................ 2
Research Question ................................................................................................................. 2
Research Hypothesis .............................................................................................................. 3
Research Methodology .......................................................................................................... 3
Literature Review................................................................................................................... 3
Chapterization ............................................................................................................................ 4
Chapter 1 ................................................................................................................................ 4
Chapter 2 ................................................................................................................................ 5
Chapter 3 ................................................................................................................................ 5
Chapter 4 ................................................................................................................................ 5
Chapter 5 ................................................................................................................................ 5
Acknowledgement ..................................................................................................................... 9
Introduction .............................................................................................................................. 10
Chapter 1 .................................................................................................................................. 12
Concept of Triple Talaq ................................................................................................... 12
Status of Triple Talaq in India ......................................................................................... 14
Chapter 2 .................................................................................................................................. 15
The case of Shayara Bano ................................................................................................ 15
Chapter 3 .................................................................................................................................. 18
Legal alternatives ............................................................................................................. 18
Chapter 4 .................................................................................................................................. 20
Not another Shah Bano .................................................................................................... 20
Chapter 5 .................................................................................................................................. 22
Suggestions and Findings ................................................................................................ 22
Conclusion ....................................................................................................................... 22
Bibliography ............................................................................................................................ 24
1. Books (Secondary Source) ............................................................................................ 24
2. Cases (Primary Source)................................................................................................. 24
3. Statutes (Primary Source) ............................................................................................. 24

8
 ACKNOWLEDGEMENT

It is my humble duty to record gratitude and indebtedness to everyone concerned with my present
work. I want to express my immense gratitude to Dr. Sangita Laha, Associate Professor (Law),
National University of Study and Research in Law, Ranchi and my research supervisor for her
constant support, patient guidance and encouragement since the inception of the idea and
undertaking of the research to successful completion of the same. I am sure it would not have
been possible without the kind support and guidance she showed me throughout my research
work. I am very thankful to her for assigning to me such an interesting topic to work upon too.
I am also thankful to my friends for their timely help. I would like to extend my heartfelt thanks to
them.

Date: 30 June 2021. Submitted by:

Rohit Kumar (1014)

9
ANALYSIS OF TRIPLE TALAQ FROM THE PERSPECTIVE OF SHAYARA
BANO CASE

INTRODUCTION

The Supreme Court of India (‘SC') issued an order in Shayara Bano v. Union of India (‘Shayara
Bano') that invalidated the practice of instant triple talaq or talaqe-biddat, which had been
widely used by Muslim husbands to end their marriages instantly and irreversibly. The decision
received massive applause, specifically from women's rights organizations, because it was seen
as a critical step in achieving a gender-just society.

Another factor worth noting, if only symbolically, is that the court that handed down the
decision was made up of judges of several religious denominations.

Although the Court's primary concern in the case was whether triple talaq was constitutional
and protected under personal laws, its decision had far-reaching consequences for other
problems, including personal law reform and, more crucially, how such reform should be
accomplished. When employed politically, these issues, which are indirectly or directly
touched by the triple talaq decision, become particularly serious and sensitive. For example, in
this case, the current Central Government, which is accused by some observers of having an
anti-Muslim tone, has sponsored a Bill that criminalizes the practice and intends to make it
punishable by imprisonment for up to three years as well as a fine. On the one hand, some have
viewed this government action as an unjust case of the government interfering in the private
affairs of a group of individuals, in this case Sunni Muslims of the Hanafi sect. On the other
hand, others have suggested that if the government was truly concerned about Muslim women's
well-being, it would have included a provision in the Bill for arbitration or reconciliation,
allowing Muslim women, who are the true victims of this practice, a bigger say in the matter.

This study examines the wisdom of the top-down approach to revising personal rules in the
wake of the triple talaq decision. To do so, it first gives a brief overview of the judgment in
order to illustrate the diverse methods taken by the many decisions that make up the judgement.
It then follows the development of Indian court jurisprudence in the areas of personal laws and
religious freedom. The paper focuses on two points: first, that Indian courts have been
inconsistent in their approach to personal laws, and second, that the courts, through the doctrine

10
of essential religious practices, have not only interjected into the domain of personal laws, but
have also attempted to fashion religion-specific personal laws according to the adjudicating
court's understanding of religion. In light of the subsequent discussion, the article analyzes the
broader subject of personal law reform and how it should be implemented in a multi-religious
society like India.

11
 CHAPTER 1
CONCEPT OF TRIPLE TALAQ

Islam is one of the world's oldest religions, and it is the world's second most popular religion
after Christianity. Islam is frequently condemned these days owing to frequent terrorist acts
and its polygamy or Triple Talaq norms, although it provides everything in a structured manner.
The Holy Quran and transmission of several volumes of Hadees provide codified regulations
concerning marriage, divorce, succession, kinship, and other matters. Most of the time, Muslim
scholars misinterpret the divorce regulations prescribed by the Holy Quran and Hadees.

Prophet Muhammad said that divorce (talaq) should be avoided at any cost unless and until it’s
impossible to carry forward the bond of marriage. Talaq in its primitive sense means
dismission. It literally means "to set free," "to let go," or to be rid of any "chains or restraints."
It signifies liberation from the bonds of marriage and not from any other bonds in Sharia law.
In a legal sense, it refers to the husband's use of suitable language to dissolve the marriage1. In
other terms, talaq is the husband's rejection of the marriage in line with Islamic law's procedure.

In Islam, there are two types of talaq (divorce):

1. Talaq-ul-Sunnat
2. Talaq-ul- Biddat

1) The word "Sunnat" comes from Muhammad's (the prophet) style of life, which is seen as a
model for Muslims. There are two categories in Talaqul-Sunnat:

a) Talaq-Al-Ahsan (Most Proper):

This is the most appropriate form of marriage refusal. There are two reasons for this: Firstly,
the declaration could be revoked before the Iddat time ends (period of waiting). Second, Talaq's
terrible words are only to be spoken once. It is preferable that these remarks are not repeated
because they are evil.

b) Talaq-al-hasan (Proper):

1
"the Dissolution of Muslim Marriages Act, 1939"

12
According to the Holy Quranic injunctions and the Hadees revealed by Prophet Muhammad,
Talaq-ul-Hasan is a "legitimate" manner of divorce. In this form, either party to the marriage
might revoke the divorce before three Tuhrs have passed. (the interval between menstrual
periods) As a result, after completing each Tuhr, the male must speak "Talaq" to his wife,
giving the parties an opportunity to reconcile.

2) Talaq-e-Biddat (Triple or Instant Talaq):

Any invention is referred to as "biddat," and Muhammad (Prophet) stated biddat as follows:

"He who innovates something that is not in accordance with our subject (religion), will have it
rejected," Muhammad (Prophet) declares in this regard. " Even Allah says in the interpretation
of the meaning of the Holy Quran that biddat in Islam is not permissible. "The best person
among you is one who is best to his wife," Prophet Muhammad stated, as narrated by A.
Hurraira, in stressing the importance of marriage in Islam and how wives should be treated.
"There are three things that are vital for happiness," Prophet Muhammad remarked in other
Hadees narrated by Ibn-Musnad. 1) A faithful wife 2) A large house 3) a reliable mode of
transportation (4)These Hadees are interpreted to mean that a woman and marriage bond should
be unbroken. Marriage is also emphasized in Holy Quranic verses such as Chapter 2,4 and 65.
(5) As a result, in order to dissolve a marriage, the parties must engage in reconciliation and
other methods to keep it alive. If all this fails, only then can recourse be taken through divorce.2

The worst part about talaq-ul-biddat is that when a person says "Talaq," the divorce is finalized.

This type of talaq was never agreed upon by Prophet Muhammad. The Holy Quran clearly
indicates in chapters 2, 4, and 65 that Muslim men must wait till the period of iddat (waiting)
has passed before disapproving the talaq (divorce) in one go.

2
Hanafi jurisprudence sanctions triple talaq - Times of India"

13
STATUS OF TRIPLE TALAQ IN INDIA

India is a secular state, where each and everyone have a right to worship or follow their own
religion. According to the 2017 list there is 14.20% muslim population. It is ubiquitous among
India's muslim community majority of whom follow the Hanafi Islamic school of law. The
muslim lived in India also practice the triple talaq. It allows any muslim man to lawfully
divorce his female partner by uttering the word talaq three times in oral, written or currently in
electronic form. In this a man did not need to cite any reason for the separation and the wife
need not have been present at the time of promulgation. On 22 August 2017, the Indian
Supreme court held instant divorce or triple talaq unconstitutional3. The triple talaq was not
abolished in India before March 2017, on this date over one million of Indian muslim
population took step against triple talaq majority of whom were women, they signed a petition
to end the triple talaq, which was started by Muslim Rashtriya Manch, this Muslim Rashtriya
Manch is an Islamic organization federate to the rights wing hindu nationalist association
Rashtriya Swayamsevak Sangh. At last a bench of judges was set up and they the controversial
related to triple talaq in 2017. So, after all the hearing, the court said that until the government
composes a law regarding triple talaq, there would be an injunction against husbands
pronouncing triple talaq on their wives. Triple talaq may be admissible custom but it
deteriorating and unworthy, since, triple talaq I instant it is changeless and then marital tie gets
broken, it violates the right to equality. The judgment of court only banned triple talaq not the
other forms of muslim divorce.

3
"Triple Talaq verdict: What exactly is instant divorce practice banned by court?". hindustantimes.com.
Hindustan Times. 22 August 2017.

14
 CHAPTER 2
THE CASE OF SHAYARA BANO

The current debate around triple talaq is centred on the Sharaya Bano and several batches of
petitions as well as Supreme courts own suo moto PIL to consider whether certain aspects of
Islamic personal laws amount to gender discrimination and hence violates the constitution. The
petition hence challenges the validity of triple talaq on the touchstone of article 14, article 15,
article 21 and article 25.4

It states:

It is submitted that religious officers and priests like imams, maulvis , etc. who propagate,
support and authorise practices like talaq-e-bidat, nikah halala, and polygamy are grossly
misusing their position, influence and power to subject Muslim women to such gross practices
which treats them as chattel, thereby violating their fundamental rights enshrined in Articles
14, 15, 21 and 25 of the Constitution.

Then the petition goes on to explain the plight of the Muslim women who is suffering due to
the abhorrent practice of triple talaq. Further it avers that:

The Muslim personal laws of India permit the practice of talaq-e-bidat or talaq-i-badai, which
includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr
(the period between two menstruations), or in a tuhr after coitus, or pronouncing an irrevocable
instantaneous divorce at one go. This practice of talaq-e-bidat (unilateral triple-talaq) which
practically treats women like chattel is neither harmonious with the modern principles of
human rights and gender equality, nor an integral part of Islamic faith, according to various
noted scholars.The practice also wreaks havoc to the lives of many divorced women and their
children, especially those belonging to the weaker economic sections of the society.

It is important to note that though the petition mentions several judgments which have dealt
with the triple talaq conundrum; it does not rely on the ratio of any of the judgements but rather
challenges the constitutional validity of the triple talaq. Further the petition discussed that as
triple talaq is not an essential tenet of the religious belief of the Muslims it is not saved by
article 25 of the Constitution of India. However the petition nowhere questions the inherent
discretion given to the Muslim husband to pronounce talaq to the wife, rather it only challenges

4
The constitution of India

15
the practice of triple talaq. Hence the Shayara Bano petition does not bring out the ills of triple
talaqas it stands today.

Further in the public interest litigation here is no mention of Protection of Women from
Domestic Violence Act, 2005 when it was clear that the woman had been subjected to worst
kind of cruelty ranging from dowry demands to abandonment. There are several stipulations in
the said act which provide for easier dispensation of justice especially considering the facts and
circumstances of this case.

The above resulted in a predictable reaction from the Muslim Personal Board which saw this
move as a question on their Muslim identity. The counter-affidavit by the All India Muslim
Personal Law Board (AIMPLB) to plead that the Supreme Court has no jurisdiction to
adjudicate over Muslim Personal Law since it is inextricably interwoven with the religion of
Islam, which is based on Quaranic injunctions and is not a law enacted by Parliament, only
serves to render the proceedings contentious and add to the controversy.However such an
argument does not hold good as the Supreme Court has in innumerable cases intervened in
personal laws. Be it either Shamim Ara v. State of U.P5or Mohd. Ahmad Khan v.Shah
Bano Begum6or Danial Latifi v. Union of India7 the Supreme Court has been instrumental
in reforming the personal legal position.

From the above it is clear that the petition has created a discourse whereby rights of the Muslim
women can be only guaranteed by confrontation with the Muslim identity. It is important to
note that both the ignorance of the legal development in the Muslim personal laws by the
lawyers as well as the illogical intervention by the Muslim Personal Law Board has gone on to
construct this divide of ‘us’ versus ‘them’. Such a divide has always proved to be detrimental
to women as somewhere in this meta-truth of good and evil, oppressive and civilized the
experiential realities of women are obliterated. It is important to understand that the Muslim
women subject is formed from the very community which allegedly subjugates her. It is
important for the courts to understand that constitutional rights would remain a dead letter if
we do not understand the manner in which identity politics unfolds especially in case of
women. The whole triple talaq issue has become a battleground for the culture v. modernity

5
2002 (7) SCC 518.
6
1985 AIR 945, 1985 SCR (3) 844
7
(2001) 7 SCC 740.

16
debate. It is important to realize that women’s experiences cannot be understood in these
reductive binaries as “she” is produced from the very power relations which subordinate them.

17
 CHAPTER 3
LEGAL ALTERNATIVES

There has been plethora of cases both in the Supreme Court and several high courts declaring
instantaneous triple talaq to be invalid. The apex court in Shamim Ara v. State of U.P8 has
already invalidated instantaneous triple talaq. While quoting Rukia Khatun v. Abdul
Khalique Laskar9 the court observed: the correct law of talaq, as ordained by Holy Quran, is:
(i) that 'talaq' must be for a reasonable cause; and

(ii) that it must be preceded by an attempt of reconciliation between the husband and the wife
by two arbiters, one chosen by the wife from her family and the other by the husband from his.
If their attempts fail, 'talaq' may be affected.

The court further added that the “talaq to be effective has to be pronounced. The term
'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to
articulate.” The court further added:

None of the ancient holy books or scriptures mentions such form of divorce. No such text has
been brought to our notice which provides that a recital in any document, incorporating a
statement by the husband that he has divorced his wife could be an effective divorce on the
date on which the wife learns of such a statement contained in an affidavit or pleading served
on her. Therefore from the above judgment it is clear that a plain affidavit or talaqnama without
any efforts of reconciliation cannot effectuate a talaq. Further in the Dagdu Pathan v. Rahimbi
Pathan10the full bench of the High Court of Bombay held that a Muslim husband cannot
repudiate the marriage at will. The court added that“to divorce the wife without reason, only to
harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in
violation of the procedure prescribed by the Shariat is haram”. In Mansroor Ahmed v. State
(NCT of Delhi)11the High Court of Delhi while interpreting the Shamim Ara judgment held
that: A revocable talaq, the dissolution of marriage does not take place at the time of
pronouncement but is automatically deferred till the end of the iddat period. This duration is
specifically provided so that the man may review his decision and reconciliation can be
attempted. A hasan talaq is revocable. So also are the first two talaq pronouncements in the

8
2002 (7) SCC 518.
9
(1981) 1 GLR 375.
10
II (2002), DMC 315 Bom FB.
11
2008 (103) DRJ 137 (Del).

18
case ccof ahsan talaq. Now, talaq-ebidaat has also been held by me to be operative as a single
revocable talaq. In the recent ruling ofShakil Ahmad Shaikh v. Vahida Shakil Shaikhthe High
Court of Bombay reaffirmed that the plea taken by the husband that he had given talaq to his
wife at an earlier date does not amount to the dissolution of marriage, unless the talaq is duly
proved and it is further proved that it was given by following the conditions precedent, namely,
arbitration/reconciliation and valid reasons.

Hence from the above discussion it is clear that in order to pronounce effective talaq
reconciliation is a sine qua non. Therefore it is safe to conclude that the abovementioned cases
obliterate the distinction between talaq-e-biddat and talaq-e-sunnat. It is important to note that
in the Shayara Bano petition there is no challenge with respect to talaq-e-sunnat therefore the
decision of the cases shall not serve as a legal precedent. In fact the petition nowhere discusses
the issues that plague the whole discretion debate.

Further it is also a settled law that the deserted wife is entitled to maintenance and such right
holds good even if the husband has pronounced talaq or sent the talaqnama. In Daniel Latifi
case the court had held that the wife’s right to maintenance is not extinguished after the iddat
period but continues for her entire life.

Therefore there were a lot of available legal recourses which could have been resorted to by
the petitioner rather than pleading for such controversial which has already been invalidated
by the Supreme Court back in 2002 had is being followed by all the high courts. However such
negation of these alternate remedies creates an image of a thoroughly victimized Muslim
woman who has been oppressed by the archaic personal law and can be only rescued by the
Supreme Court. Such an all encompassing narrative completely invisiblises the long drawn
feminist struggle which has successfully subverted the patriarchal practice prevalent in the
community by approaching and negotiating with the same courts but without invoking the
communal fervour.It is further important to note that such invocation would not change the
lived experience of the Muslim women rather it places her at the crossroad as her oppression
cannot be attributed to anyone source due to the interlocking between her Muslim identity and
gender subjugation.

19
 CHAPTER 4

NOT ANOTHER SHAH BANO

The best example of confrontational politics leading to actual victimization of the woman in
question was the Shah Bano case.12The case pertained to maintenance to the Muslim wife after
talaq had been pronounced. The court while upholding the abovementioned right under
section125 of the CrPC observed that:

It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It
provides that "The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India". There is no evidence of any official activity for framing a
common civil code for the country. A belief seems to have gained ground that it is for the
Muslim community to take a lead in the matter of reforms of their personal law. A
commonCivil Code will help the cause of national integration by removing disparate loyalties
to laws which have conflicting ideologies. No community is likely to bell the cat by making
gratuitous concessions on this issue. It is the State which is charged with the duty of securing
a uniform civil code for the citizens of the country and, unquestionably, it has the legislative
competence to do so.

The plea to invoke UCC and the adverse comments made by the court against the Prophet and
Islam resulted in to a backlash from the Muslim community. It was seen by them as an attack
on their cultural believes and faith and was perceived as a means to impose the hegemonic idea
of uniformity and universality on them. Therefore a statute based on Islamic jurisprudence was
demanded. During this period the Muslim woman was situated within these sharply drawn
binaries and was called upon to choose between her religious beliefs and community
affiliations at one end and her gender claims at the other, which was indeed a difficult choice
her.

12
1985 AIR 945, 1985 SCR (3) 844

20
Such discourses led to Shah Bano renounce the maintenance given to her by the court under
section 125. Ironically, the fury which was whipped up seemed to be divorced from the core
component of the controversy, a paltry sum of Rs.179.20 per month, far too inadequate to save
the middle-aged, middle class, ex-wife of a Kanpur-based lawyer, from vagrancy and
destitution.

However Shah Bano declared that she would instead be a devout Muslim rather than claim
maintenance. Such a statement warrants introspection from both the side of the controversy.
The woman who was presented as the face of oppression of the Muslim community declined
the relief given to her. It is important to appreciate her subject position of not just being a
woman but a Muslim woman. Heridentity was multifaceted and she wanted to achieve
empowerment within the boundaries of her faith. Such an example brings us back to the
question put forward by Gayatri Spivak that “can subaltern speak?”

21
 CHAPTER 5
SUGGESTIONS AND FINDINGS

Triple Talaq is in practice from centuries but injustice from centuries can never become a
justice. A full stop is always required; there is always a need for amendment. We are talking
about it, this is the first step, the apex court by setting aside the practice has taken the second
step and did provide justice to all those who have been suffering from so long. However, there
are still a number of women who are suffering. Even after the apex court passed this judgment
the All India Muslim Personal Law Board has confirmed cases of instant Triple Talaq. This is
because of the lack of proper execution and legal knowledge. Maintenance rights and all other
rights should be given to the Muslim women as well and one day these little steps will take us
to our destination of a Uniform Civil Code.

CONCLUSION

The question remains that whether declaring the practice of triple talaq unconstitutional would
ameliorate the condition of Muslim women more than the invalidation has done. Further such
a move would pit the rights of a Muslim woman against her social and cultural believes. It is
important to understand that identity subversion is a very complex phenomenon. The problem
with identity politics is that it does not transcendent difference but is rather shaped by the very
difference. Drawing upon the post-modern scholarship the subjectivity of the Muslim women
has to be understood to be constructed within the same socio-cultural context. For example,
pious Islamic women may contest patriarchal regimes of Quaranic interpretation home, while
at the same time articulating a sort of global solidarity.13 It has to be understood that the identity
of a Muslim woman is intrinsically linked to her Muslim-ness and cannot be divested from it.
Therefore the law reforms cannot take into account the linear narrative of victimisation through
the patriarchal Muslim community but rather also has to provide space for assertion of
multilayered identities like these. Here we stand confronted by some of the most intractable
problems of the conflict of rights where self--chosen sedimentation of identity within a
religious tradition is at odds with forms of universalistic modes of de-traditionalisation of the

13
Upendra Baxi, Future of human rights(Oxford University Press, NewDelhi, 2008)

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politics of difference demanding gender equality and justice. Here comes to the recue the
conceptualization of inter-sectionality were we can better acknowledge and ground the
difference among us and negotiate the means by which these differences will find expression
in constructing group politics.14 So basically in case of Muslim women article 14, 15 or 21
cannot be seen to give a universal definition of equality or life applicable to all women. The
conception of equality must also be informed by the difference in experiences of the women.
It has to be understood that neither human rights are universal nor apolitical infact they can
sometime, though unconsciously, become the political tool of oppression. Therefore the idea
of equality which pitches the two identities which she is made from, against each other can
never be a feminist achievement. It is a big success for feminist politics that now even the
Muslim community is recognizing the Shamim Ara judgment and hence the whole community
is acknowledging the invalidation of arbitrary talaq. However even when gender concerns of
the marginalised women hit the headlines, they do so primarily to strengthen the prevailing
stereotypical biases against the community at large. Hence ‘women rights’ is a multifaceted
issue which is embedded in broader political processes and consequently requires a complex
response. Such response has to engender in a communally vitiated environment to actually
have an impact on the lives of Muslim women.In the current scenario when the case is put
before the court and if it hears it even after the Muslim Personal Law Board recognising the
Shamim Ara decision then the court shall again pitch the ‘gender versus community’ debate
thereby creating another Shah Bano.

14
Kimberley Crenshaw “Mapping the Margins: Intersectionality, Identity politics and violence against women of
colour” 43Stanford Law Review 1299 (1991).

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 BIBLIOGRAPHY

1. BOOKS (SECONDARY SOURCE)

• 12, Halsbury’s Laws of England, 290 (3rd ed., 1964).
• Asaf Ali Asghar Fyzee, Outlines of Muhammadan Law, 173 (5th ed., Oxford
University Press, 2008).
• B.S. Aswal, Women and Human Rights, (Cybertek Publication, 2010).
• Dr. Rakesh Kumar, Textbook on Muslim Law, 158 (Universal Law Publishing Co.,
2011).
• Syed Khalid Rashid, Muslim Law, 189 (4th ed., Eastern Book Company)

2. CASES (PRIMARY SOURCE)

• Dagdu Pathan v. Rahimbi Pathan (2002), DMC 315 Bom FB.
• Shamim Ara v. State of U.P
• Mansroor Ahmed v. State (NCT of Delhi) 2008 (103) DRJ 137 (Del).
• Rukia Khatun v. Abdul Khalique Laskar(1981) 1 GLR 375.
• Shamim Ara v. State of U.P 2002 (7) SCC 518.
• Mohd. Ahmad Khan v.Shah Bano Begum 1985 AIR 945, 1985 SCR (3) 844
• Danial Latifi v. Union of India (2001) 7 SCC 740.

3. STATUTES (PRIMARY SOURCE)

• The Code of Criminal Procedure, 1973, Act No. 2, Acts of Parliament.

• The Dissolution of Muslim Marriages Act, 1939, Act No. 8, Acts of Parliament.
• The Hindu Adoptions and Maintenance Act, 1956, Act No. 78, Acts of Parliament.
• The Indian ConstitutioN.
• The Muslim Personal Law (Shariat Application) Act, 1937, Act No. 26, Acts of
Parliament.
• The Muslim Women (Protection of Rights on Divorce) Act, 1986, Act No. 25, Acts of
Parliament
.

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