Shayara Bano vs Union Of India And Ors. Ministry Of ...

on 22 August, 2017

Supreme Court of India

Shayara Bano vs Union Of India And Ors. Ministry Of ... on 22 August, 2017
Author: . ..………………..…..………
Reportable

IN THE SUPREME COURT OF INDIA

Original Civil Jurisdiction

Writ Petition (C) No. 118 of 2016

Shayara Bano … Petitioner

versus
Union of India and others …
Respondents with

Suo Motu Writ (C) No. 2 of

2015 In Re: Muslim Women’s Quest For Equality

versus
Jamiat Ulma-I-Hind

Writ Petition(C) No. 288 of 2016

Aafreen Rehman … Petitioner

versus
Union of India and others … Respondents

Writ Petition(C) No. 327 of 2016

Gulshan Parveen … Petitioner

versus
Union of India and others … Respondents

Writ Petition(C) No. 665 of 2016

Ishrat Jahan … Petitioner

versus
Union of India and others …
Respondents

Writ Petition(C) No. 43 of 2017

Atiya
Sabri Signature Not Verified

… Petitioner
Digitally signed
by SARITA PUROHIT

Versus
Date: 2017.08.23 Union
13:12:55 IST Of
Reason: India

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 Shayara Bano vs Union Of India And Ors. Ministry Of ... on 22 August, 2017
that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.”

42. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held:

(SCC pp. 203-04, para 25) “25. … The tests of arbitrary action applicable to e Xecutive action do not
necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary
it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it
must be shown that it was not reasonable and manifestly arbitrary. The e Xpression “arbitrarily”
means: in an unreasonable manner, as fiXed or done capriciously or at pleasure, without adequate
determining principle, not founded in the nature of things, non-rational, not done or acting
according to reason or judgment, depending on the will alone.” (at pages 736-737)

55. It will be noticed that a Constitution Bench of this Court in Indian E Xpress Newspapers v. Union
of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be
challenged on any of the grounds available for challenge against plenary legislation. This being the
case, there is no rational distinction between the two types of legislation when it comes to this
ground of challenge under Article 14.

The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to
invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness,
therefore, must be something done by the legislature capriciously, irrationally and/or without
adequate determining principle. Also, when something is done which is e X cessive and
disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate
legislation as well under Article 14.

56. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a
form of Talaq which is itself considered to be something innovative, namely, that it is not in the
Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee’s book (supra),
the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that
though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara v.

State of U.P., (2002) 7 SCC 518, this Court after referring to a number of authorities including
certain recent High Court judgments held as under:

“13…The correct law of talaq as ordained by the Holy Quran is that talaq must be for
a reasonable cause and be preceded by attempts at reconciliation between the
husband and the wife by two arbiters — one from the wife’s family and the other from
the husband’s; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun
case [(1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as
ordained by the 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

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 Shayara Bano vs Union Of India And Ors. Ministry Of ... on 22 August, 2017

husband from his. If their attempts fail, “talaq” may be effected. The Division Bench
eXpressly recorded its dissent from the Calcutta and Bombay views which, in their
opinion, did not lay down the correct law.

14. We are in respectful agreement with the abovesaid observations made by the learned Judges of
the High Courts.” (at page 526)

57. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at
reconciliation between the husband and wife by two arbiters from their families, which is essential
to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid
Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the
law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of
Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and
whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of
Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of
the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and
enforce Triple Talaq, is within the meaning of the eXpression “laws in force” in Article 13(1) and
must be struck down as being void to the e Xtent that it recognizes and enforces Triple Talaq. Since
we have declared Section 2 of the 1937 Act to be void to the e Xtent indicated above on the narrower
ground of it being manifestly arbitrary, we do not find the need to go into the ground of
discrimination in these cases, as was argued by the learned Attorney General and those supporting
him.

…………………………………J.

(Rohinton Fali Nariman).......................................J.

(Uday Umesh Lalit) New Delhi;

August 22, 2017.

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