FAMILY LAW II: ASSIGNMENT

CASE BRIEF ON
SHAYARA BANO V. UNION OF INDIA, (2017) 9
SCC 1

MADE BY: DHAWAL SHARMA

 TABLE OF CONTENTS
Facts Of The Case .................................................................................................................. 2

Legal Framework ................................................................................................................... 2

Article 14 ............................................................................................................................ 2

Article 15 ............................................................................................................................ 2

Article 21 ............................................................................................................................ 2

Article 25 ............................................................................................................................ 3

Issues Raised .......................................................................................................................... 3

Whether the practice of triple talaq under Muslim personal laws is part of an enforceable

fundamental right under Article 25. ................................................................................... 3

Whether the practice of triple talaq violates the constitutional rights guaranteed under

Articles 14, 15, and 21. ....................................................................................................... 3

Petitioner's Argument ............................................................................................................. 3

Respondent's Arguments ........................................................................................................ 4

Analysis of the Court.............................................................................................................. 5

Theological Examination .................................................................................................... 5

Constitutional Examination ................................................................................................ 5

Ruling of the Court................................................................................................................. 5

Majority Opinion ................................................................................................................ 5

Minority Opinion ................................................................................................................ 6

Conclusion.............................................................................................................................. 6

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 FACTS OF THE CASE
Shayara Bano's 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 women's rights organizations like the Bebaak Collective and
the Bhartiya Muslim Mahila Andolan (BMMA) also supported Ms. Bano's plea that these
practices should be held unconstitutional. They even urged the court to declare that personal
law was subject to the 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 women's 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.

LEGAL FRAMEWORK
The legal challenge was based on the assertion that triple talaq violates several fundamental
rights as enshrined in the Indian Constitution:

Article 14: Right to equality before the law and the equal protection of the laws.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of
birth.

Article 21: Protection of life and personal liberty.

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Article 25: Freedom of religion, subject to public order, morality, and health. The petition
argued that triple talaq leads to discrimination based on gender, thus violating Articles 14,
15(1), and 21.

ISSUES RAISED
Whether the practice of triple talaq under Muslim personal laws is part of an enforceable
fundamental right under Article 25.

Whether the practice of triple talaq violates the constitutional rights guaranteed under
Articles 14, 15, and 21.

PETITIONER'S ARGUMENT
Shayara Bano's advocate Mr. Amith Chadha began by arguing that triple talaq is not a form of
divorce recognized by The Muslim Personal Law (Shariat) Application Act, 1937. He also
pointed out that several High Courts and Supreme Court have restricted this unilateral power
of Muslim men to be able to divorce Muslim women and even criticized the practice of triple
talaq as it does not have any Quranic sanction.

He urged the court to "strike down the practice of triple talaq as it allows an un-codified power
to Muslim men to divorce, violating Articles 14 and 15 of the Constitution."

Next, Mr. Amith Chadha argued that "the practices challenged in this case are not essential
practices of Islam as it is evident from legislations in other Islamic countries, that have
prohibited such practices."

Mr. Anand Grover, representing the Bhartiya Muslim Mahila Andolan (BMMA) also clarified
that "Talaq itself is of three types: talaq ahsan and talaq hasan, both of which are approved and
recognized by the Quran and Hadith while the third type that is talaq-e-bidat, is neither
recognized nor approved by the Quran nor the Hadith.

Ms. Indira Jaising, Sr. Adv. who was representing the Intervenors, argued that "personal laws -
whether codified or un-codified - regardless of the community, are subject to Article 13 of the
Indian Constitution and therefore void to the extent that they violate fundamental rights."

She also concluded by advancing the general proposition that "any divorce which is unilateral
and without judicial oversight violates Articles 14, 15 and 21 of the Indian Constitution. Also,
the general Islamic concept of marriage among Muslims is admittedly a contract it cannot be
dissolved unilaterally."

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Mr. Anand Grover, Sr. Adv, started by pointing out that "the AIMPLB is a private body that
isn't representative of the views of all Hanafi Muslims. He asserted that there are differences
in the Hadith texts and read an interpretation of Hadith which prescribed that triple talaq should
be staggered."

RESPONDENT'S ARGUMENTS
Mr. Kapil Sibal, Sr. Advocate, representing the All-India Muslim Personal Law Board
(AIMPL) began by emphasizing that the core underlying issue before the court is that of
patriarchy which pervades every religion and not the issue of triple talaq

Mr. Sibal referred to the Constituent Assembly Debates to argue that the definition of law under
Article 13 does not include personal laws. He suggested that the explicit mention of personal
laws in the Concurrent List (List III of the Seventh Schedule) and its absence in Article 13
demonstrates the Constitution makers' intention to exclude personal laws.

Mr. Sibal then sought to place this case in a historical and social context. He noted that it is
important to protect minority rights in a Hindu majority state. Most jurisdictions that passed
legislation abolishing triple talaq have Muslim majorities. Hence, India must be sensitive to
the Muslim community's minority status before legislation is proposed.

Mr. Sibal responded that while the Quran is silent on triple talaq, there is nothing in it that
prohibits triple talaq. Moreover, petitioners' view that the Quran alone is the source for
understanding talaq is incorrect as the Sharia is based on the Quran, Hadith, and interpretations
of scholars.

Mr. Sibal concluded arguments by claiming that Muslim women are not discriminated against
by the triple talaq rule and may even benefit from immediate relief from bad marriages. He
proposed four options for a Muslim woman to protect herself from a discriminatory use of the
triple talaq: first, she may register the marriage under the Special Marriage Act, 1954; second,
she can insert conditions into the Nikahnama to prohibit her husband from exercising a triple
talaq; thirdly, she delegates the right to talaq to herself and finally, insist on the payment of a
high Mehr amount to deter the exercise of triple talaq.

He concluded arguments by emphasizing that the Hanafi school is a religious denomination

and that every denomination's right to practice religion is protected under Article 26 of the
Constitution.

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Mr. Goel argued that the question of assessing the constitutional validity of triple talaq does
not arise as the divorce is between two private individuals and there is no state action involved.

Moreover, since marriage is a private contract under Islamic Law, no State legislation can
change it.

Mr. Giri, Sr. Advocate, cited verses from the Quran to argue that marriage and divorce have
sources in religious scriptures and thus are essential matters of religion protected under Articles
25 and 26 of the Constitution.

ANALYSIS OF THE COURT

The Supreme Court bench, consisting of five judges from different religious communities,
undertook a comprehensive examination of the issue. The judgment had to balance religious
customs and constitutional mandates, a task that involved delving into theological aspects along
with legal principles.

Theological Examination

The court scrutinized Islamic scriptures and observed practices in different Islamic countries.
It noted that many Islamic nations had abolished or reformed the practice, suggesting that triple
talaq was not an essential part of the Islamic faith. The bench also revisited various precedents
and earlier rulings where the validity of triple talaq had been questioned but not conclusively
decided.

Constitutional Examination

The court engaged in a detailed analysis of fundamental rights, particularly focusing on Articles
14, 15, 21, and 25. It assessed whether triple talaq, as a unilateral and arbitrary practice, stands
the test of equality and non-discrimination promised by the Constitution. The court also
considered international treaties and conventions to which India is a signatory, like the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

RULING OF THE COURT

The Supreme Court, through a majority decision of 3:2, declared the practice of triple talaq
unconstitutional. The key points from the ruling were:

Majority Opinion

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Justice Rohinton Nariman and Justice U.U. Lalit ruled that triple talaq is unconstitutional and
violative of Articles 14 and 21. They stated that it must be struck down as it is manifestly
arbitrary and not a protected religious practice under Article 25.

Justice Kurian Joseph concurred with Justices Nariman and Lalit, adding that triple talaq is not
an essential religious practice in Islam, thus does not merit protection under Article 25.

Minority Opinion

Chief Justice J.S. Khehar and Justice S. Abdul Nazeer took a divergent view by stating that
though they recognize the problematic aspects of triple talaq, it is a matter for the legislature to
decide, and as such, it is a protected religious practice under Article 25.

The judgment led to a direction for the central government to formulate legislation to govern
marriage and divorce among Muslims. The government responded by introducing the Muslim
Women (Protection of Rights on Marriage) Act, 2019, which made instant triple talaq a criminal
offense.

CONCLUSION
The Shayara Bano v. Union of India case is a landmark judgment in the annals of Indian
judiciary, where the conflict between religious practices and constitutional rights was
adjudicated leading to the upholding of fundamental rights. It paved the way for legislative
changes, reinforcing the supremacy of the Constitution over personal laws when they conflict
with fundamental rights. This case significantly impacted the lives of numerous Muslim
women and set a precedent for future cases involving personal laws and fundamental rights.