.

A CRITICAL ANALYSIS OF SC VERDICT

IN TRIPLE TALAQ CASE

Submitted By

NISHANT CHAUDHARY

DIVISION D, PRN - 21010223137, CLASS OF 2021-26

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

September, 2022

Under guidance of

Ms. Shipra Sinha

Assistant Professor

Symbiosis Law School, NOIDA

CERTIFICATE

The Project titled ‘A Critical Analysis of SC Verdict in Triple Talaq Case’ submitted to the
Symbiosis Law School, NOIDA for Law of Constitutional Law I as part of Internal
Assessment is based on my original work carried out under the guidance of Ms. Shipra Sinha.

The Research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

NISHANT CHAUDHARY

Date: 07.09.22
ACKNOWLEDGEMENT

The Project First and foremost, I'd like to thank Ms. Shipra Sinha for her assistance and
guidance throughout this project. She provided me with excellent expertise, allowing me to
grasp all of the project's fundamentals and alleviate any concerns I had.

I'd also like to express my gratitude to the library department and academic support at
Symbiosis Law School, NOIDA for providing me with variety of research materials to aid in
the creation of an original project.

Lastly, I'd like to express my gratitude to Symbiosis Law School, NOIDA, for presenting me
with this assignment so that I could grasp the fundamentals of this topic swiftly,
satisfactorily, and thoroughly.
 INDEX

S.No. Title Page No.

1 Certificate 2

2 Acknowledgement 3

3 Introduction 5-6

4 Analysis 7-8

5 Conclusion 9

6 Bibliography 10
INTRODUCTION

The Supreme Court issued a significant ruling on the constitutional legitimacy of "Talaq-e-
Biddat," also referred to as "Triple Talaq," on August 22, 2017. This is one of the process of
talaq which is initiated by male muslims; the other two are "Talaq ahasan" and "Talaq hasan."
In Talaq-e-Biddat , a Muslim man can instantaneously divorce his wife by saying "talaq"
three times in a row without the involvement of the state. Here, contact could take place
orally, in writing, or even electronically, further increasing the vulnerability of the woman in
this arbitrary and unjust divorce. Given that this contentious practise intersects gender
identity and community, it is not surprising that it has made Muslim women more vulnerable
to abuse which they have been suffering since ages. And one of the main reason for this is
majority of women depend financially on their husbands, and adding to this already chaotic
situation the process and practice of triple talaq leaves many cases of marital abuse
unreported.

Throughout the decade before this landmark judgement, various rulings in favour of and
against this practise were made. The requirements for a legitimate talaq were mentioned in
the case, Shamin Aru v. State of Uttar Pradesh, 1 which was decided in 2002. Even while it
didn't explicitly address the triple talaq, it did start a conversation on what constitutes a legal
talaq.

The case of Shayara Bano vs Union of India, 2 better known as the ‘Triple Talaq Case’,
delivered India a landmark ruling that deemed the Triple Talaq custom to be unconstitutional.
The Triple Talaq ruling is largely recognised as a defence against social ills across all
jurisdictions. Instantaneous Triple Talaq was finally outlawed in India as a result of the
persuasive and well-founded arguments made by the Supreme Court's majority bench.

Rizwan Ahmed and Shayara Bano, the petitioner, had completed 15 years of their weeding.
In 2016, he divorced her using the instant triple talaq method, which entails speaking the
word "talaq" three times in one go and the permission or approval of wife isn’t needed.
Following this event, Shayara Bano filed a Writ petition in the Supreme Court where she
pleaded to declare three practises talaq-e-biddat, polygamy, and nikah-halala as

1
AIR 2002 SCC 3551
2
AIR 2017 9 SCC 1 (SC)
unconstitutional as they violate the fundamental rights of women enshrined in Articles 14, 15,
21, and 25 of the Indian Constitution.

ISSUES BEFORE THE COURT:

1) Whether to remove the practice of triple talaq is accordance with constitutional rights?

2) What the Islamic religion mentions about Triple Talaq and is it an essential religious
practice?
ANALYSIS

A five-judge panel bench of judges offered three alternative points of view. For himself and
Justice S. Abdul Nazeer, former Chief Justice Jagdish Singh Khehar delivered the minority
opinion. Justices K.M. Joseph adopted a completely different tack but came to the same
conclusion as the majority judges Justice Rohinton Fali Niraman and Justice Uday Lalit,
which is why the margin of the decision is 3:2.

PERSONAL AND CONSTITUTIONAL LAW

On the top of it, the Court's verdict was the appropriate, but the majority judges' methods
appear to be different, which has led to a discussion on the way that personal laws in a
secular nation like India are looked upon. It begs the query of when it is appropriate for the
judges to render judgments regarding legality of an uncodified ritual like triple talaq.

Justice Khehar examines it on a whole from the point of view of the constitution, to figure out
whether it can be held as legal under that system rather than from looking at it through the
point of view of the Islamic law. Justice Khehar responds to the opposing claim that personal
law was not a law enacted by the state and that only state-enacted law is subject to
fundamental rights along similar lines. The problematic thing of the following statement is
how a behaviour that is authorised and enacted by the State, is not even codified under
personal law. Now that we have taken a closer look at Justice Niraman's statement, we can
see that he does believe that the triple talaq is "law in effect" as defined by Article 13.3

Therefore, the question that arises in this situation is: Are any pertinent rights – specifically
given in the Articles 14 and 15 that cover the right to equality that is being violated, or maybe
it can be protected by a basic right like the right to religion, as stated in Article 25?

3
Bhattacharjee (n 37) 85
RIGHT TO EQUALITY UNDER ARTICLE 14 AND 15

The judgement notably lacks a thorough examination of the discrimination solely on the basis
of gender. It is quiet Surprising that the petitioners did not highlight the case of intrinsic
inequality between the two spouses, instead focusing on how triple talaq is against Islam and
not on its negative aspects. Due to this, there is currently a political conflict pitting
modernism against cultural minorities. Since this was taken into account as a question about
their Muslim identity by minority organisations.4

RIGHT TO FREEDOM OF RELIGION

Regarding matters of religion, Justice Niraman disagreed that they would fall within the
protection of Article 25 because that provision only applies to behaviours essential to
component of religion, which many scholars on Sharia have argued is not the matter. When
we talk regarding triple talaq, putting emphasis on the religious part of the case, Justice
Joseph adopted a different approach even though he agreed with Justice Niraman. He did not
agree with Justice Niram's idea that courts should not have a say regarding decisions related
to religion. Not only this, Justice Joseph went so far as to declare that it is up to the judge to
interpret a private law where it is obscure on a particular problem.

Because no one else can decide the given circumstance of the particular practise or custom in
this case, the court must. He approached this case entirely from the perspective of the culture
and decided to ignore the constitutional issue because, in his opinion, only the legality and
validity of triple talaq under personal law of Muslims needed to be established. Thus, it is
clear that Justice Joseph delicately comes to the same conclusion as many others without
actually going via the channels of rights given by the constitution, secularism, or a common
civil code. 5He mostly depends on Muslim judges' opinions and judgments based on their
opinions on judges' opinions, which proved very important in rejecting the triple talaq and
retaining a politically feasible ruling that did not incite any resentment or animosity among
the community.6

4
The Oxford Handbook of Indian Constitutional Law  (Oxford University Press 2016) 699-719.
5
Iqbal Masud, & A. S. Uraizee. (1994). Triple Talaq Judgment. Economic and Political Weekly, 29(23), 1362–
1362. http://www.jstor.org/stable/4401276
CONCLUSION

6
Engineer, A. A. (2004). Abolishing Triple Talaq What Next? Economic and Political Weekly, 39(28), 3093–3094.
http://www.jstor.org/stable/4415250
Unquestionably a step toward equality, the Shayra Bano case's historic ruling has laid the
groundwork for upcoming changes to social and personal legislation. This ruling in the
landmark judgement also effectively dealt with the cause of minority, which is a step toward
secularism. Although gender justice was not the main focus, it will significantly benefit the
advancement of women's rights and equality of gender. This ruling is being looked forward to
be seen with an objective view and to help the Muslim women to live lives that are better and
more dependable, as required by the law of the state.

There is no denying that this ruling has become a historic decision, particularly in terms of
our nation's private law. This ruling unquestionably demonstrated that the SC has improved
from its earlier errors in personal law even though there still exists a lack of clarity on gender
equality, disparity in personal laws, and how these issues should be handled. Additionally, it
was unclear if "putting aside" the triple talaq meant that it had no consequences in the eyes of
law at all or just one. All things considered, unquestionably this is a step in the direction of
equality and has provided a solid structural base for future changes that are to take place in
social and personal laws. The judgement also effectively treated the minority, which is a step
towards the direction of secularism.
BIBLIOGRAPHY

1) AIR 2002 SCC 3551

2) AIR 2017 9 SCC 1 (SC)

3) Bhattacharjee (n 37) 85

4) The Oxford Handbook of Indian Constitutional Law (Oxford University Press 2016) 699-
719.

5) Iqbal Masud, & A. S. Uraizee. (1994). Triple Talaq Judgment. Economic and Political
Weekly, 29(23), 1362–1362. http://www.jstor.org/stable/4401276

6) Engineer, A. A. (2004). Abolishing Triple Talaq What Next? Economic and Political
Weekly, 39(28), 3093–3094. http://www.jstor.org/stable/4415250