Shayara Bano v.

Union of India
Presented to : Dr. Avinash Presented by: Sourav
Bhagi Kumar
 TALAQ…! TALAQ…! TALAQ…! These three words ‘Finally I feel free today. I
have the order that will literate many Muslim women.’

- Shayara Bano

 CITATION : AIR 2017 9 SCC 1 (SC)

 DATE OF JUDGEMENT: 22ND AUGUST, 2017

 PETITIONER / APPELLANT : SHAYARA BANO

 DEFENDANT / RESPONDENT : UNION OF INDIA AND OTHERS; MINISTRY OF WOMEN AND CHILD,
MINISTRY OF LAW AND JUSTICE
 BENCH : HON’BLE JUSTICE JAGDISH SINGH KHEHAR, HON’BLE JUSTICE S. ABDUL NAZEER,
HON’BLE JUSTICE ROHINTON FALI NIRAMAN, HON’BLE JUSTICE UDAY LALIT, HON’BLE JUSTICE
K.M. JOSEPH
 STATUTES REFERRED :

- CONSTITUTION OF INDIA; ARTICLE 14, 15(1), 21, 21(A), 25

- MUSLIM PERSONAL LAW (SHARIAT) ACT 1937

- CODE OF CRIMINAL PROCEDURE 1973 ; SECTION 125

 HISTORICAL
BACKGROUND :

Triple talaq is a 1,400-year-old practice among Sunni Muslims.

Under Islamic law if the answer to any question, solution to a conflict, or resolution to
an issue, is provided for in the holy Quran - that is the final word and rule of sharia.

When there is no clear guidance in the Quran, theologians must look to the traditions
of the prophet as recorded in the Hadis.

If no guidance is found even there then we must refer to general consensus of opinion
or ijma (which the ulema would arrive at after closely studying the first two).
If the resolution is found by ijma then that too would become a rule of Islamic law.

The Muhammadan personal law of Shariat is open to interpretation by a category of muslim legal
scholars known as ulama.

The ulama of Hanafi Sunnis believed talaq-e-biddat binding provided that the proclamation was
made in presence of muslim witnesses and afterwards confirmed by a sharia court. But this was not
the case with ulamas of ahl-i hadith, twelver and musta'li persuasions.

In India ‘talaq-e-biddat’, gained validity based on the acceptance of the same by the British courts,
prior to independence. It was submitted, that the judgments rendered by the British courts were
finally crystallized, in the authoritative pronouncement by the privy council in Rashid Ahmad Case.
It was pointed out, that thereafter, ‘talaq-e-biddat’ has been consistently practised in India.
Prior to Muslim Personal Law (Shariat) Application Act, 1937, the personal and religious
matters of the community were administered by Anglo-Mohammedan law which was enacted
by British.

Unless registered under Special Marriage Act, 1954, marriage is also considered to be a private
matter governed by Muslim personal law.

The issue of triple talaq came into light for the first time in Shah Bano Case of 1985. In addition
to seeking alimony from her spouse who pronounced triple talaq against her, the victimized
wife also challenged the long-established practice of triple talaq, halalanikah and polygamy.

However, the first noteworthy judgment concerning the issue saw its light in 2002 in case of
Shamim Ara v. State of UP. This case though not invalidated the practice of triple talaq but put
certain restrictions on it.
In the same year the Aurangabad bench of Bombay High Court
nullified the practice by giving reference from Dagdu S/O Chotu
Pathan, Latur v. Rahimbi Dagdu Pathan, Ashabi.

In this case, court held that Muslim male cannot revoke his marriage
at his will and is required to prove various grounds and stages for the
same. These judgments aided in creation of framework of ruling that
invalidated the long-run patriarchal practice of triple talaq.
 FACTS :
Shayara Bano, a 36-year-
old native of Kashipur,
The historic battle against
triple talaq, though was Uttarakhand, emerged as a
supported by plethora of spark, as defining persona
women rights activists and in the legal battle against
media, but it was finally the patricentric tradition
triggered by the victims of which ruined the lives of
the tradition themselves. thousands of Muslim
women.
Ms. Bano was the
original and main
petitioner in the case
after she knocked the
doors of the court in
2016 demanding that the
talaq-e-biddat
pronounced by her
husband be adjudicated
as void, after her 14-year
marriage terminated
abruptly in October
2015.
She also contended that such unilateral, abrupt and irrevocable form of divorce be
declared unconstitutional, arguing that the practice of triple talaq violated the fundamental
rights of muslim women.

Rizwan Ahmad, the husband of Shayara Bano, pronounced “talaq, talaq, talaq” in the
presence of two witnesses and delivered “Talaqnama” dated 10-10-2015 to her by speed
post.

The primary writ petitions which led to this landmark judgment were the ones filed by
Shayara Bano and Ishrat Jahan, respectively.
They and the other petitioners had questioned the constitutional legitimacy and therefore the
validity of continuation of ‘talaq-e-biddat’, ‘nikkahhalala’ and polygamy which are purportedly
permitted under Section 2 of the Muslim Personal Law (Shariat) Application act, 1937.

The challenge was based on Articles 14, 15, 21 and 25 of Indian Constitution. The Apex Court
decided to only deal with the issue of triple talaq, considering the factual aspect of the case. On
this, CJI Khehar, observed that the other issues “would be dealt with separately”.

Consequently, constitutional legitimacy of talaq-e-biddat was called into question before a

constitution bench comprising of 5 judges of the Supreme Court.
 ISSUES INVOLVED :

Whether Muslim Personal Law

(Shariat) Application Act, 1937
Whether talaq-e- bestows statutory status to the
biddat comes subjects governed by it or is it still
Is talaq-e-biddat sheltered under “personal law”
Islamic in nature? under the which is not within the meaning of
protection of word “law” under Article 13 of
Article 25? Constitution of India?
 ARGUMENTS
ADVANCED :
PETITIONER:

In Shayara Bano v. Union of India, Mr. Amit Chadha. Senior advocate representing
Shayara Bano began by arguing that triple talaq is not a form of divorce recognized by
the Muslim Personal Law (Shariat) Application Act, 1937.

He pointed out that several High Courts and Supreme Court decision have restricted the
unilaterality of Muslim men to divorce women and criticize the practice of triple talaq has
it does not have Quranic sanction.
Moreover, these judgement affirms that the Quran permits divorce for reasonable
cause an if preceded attempt at reconciliation. He urged the court to strike down
triple talaq as allowing an un-codified power to muslim men to divorce violate
Article 14 and 15 of the Constitution.

He concluded by suggesting that if triple talaq is struck down, the law of divorce
for muslims would be the dissolution of Muslim Marriage Act, 1939 that could
apply equally the entire muslim community, irrespective of gender.
 • In Shayara Bano v. Union of India, Mr. Kapil Sibal on behalf
of respondent AIMPLB first clarify that the Shariat Act 1937
does not codify substantive Muslim Personal Law but restate
that the sharia shall apply as a rule of decision to muslim
overriding any custom or usage to the contrary.
• He asserted that object of the act was to overcome customs
RESPONDENT that discriminated against women in matter of inheritance.
Moreover, since marriage is private contract and Islamic law,
: no state legislation can change it.
• Mr. Sibal refer to the constituent assembly debates to argue
that the definition of law under Article 13 does not include
personal laws. He pointed out that the assembly rejected
amendment that sought to include “and anything else” to the
definition of law it considered and rejected the inclusion of
such law under Article 13.
He suggested that the explicit mention of personal law in the concurrent
list and its absence in Article 13 demonstrate the constitution maker’s
intention to exclude personal law.

You can turn to the right to freedom of religious practice under Article 25
clause 2. He argued that the constitution empowers parliament to make
social reform law on secular activities associated with religious practices.

Hence, only after parliament pass the law on the subject can a court assess
its validity. Mr. Sibal suggested that collection of money in a temple an
example of such secular activity.

Mr. Sibal concluded arguments by claiming that muslim women are not
discriminated against triple talaq rule and may even benefit from
immediate relief from bad marriages.
 He proposed four options for muslim
women to protect herself from the
discriminatory use of triple talaq :

She can insert conditions

She may register the Insist on the payment of a
into the nikahnama to She delegate the right to
marriage under the Special high mehar amount to deter
prohibit her husband from talaq to herself
Marriage Act, 1954 the exercise of triple talaq.
exercising a triple talaq
 Other
Respondents:

All the parties were ‘Talaq-e-biddat’ is integral The contention of the

unanimous, that despite It would not be appropriate to the religious petitioners, that the
the practice of ‘talaq-e- for this court, to record a denomination of Sunnis questions/subjects covered
biddat’ being considered finding, whether the belonging to the Hanafi by the Muslim Personal
sinful, it was accepted practice of ‘talaq-e-biddat’ school. The same is a part Law (Shariat) Application
amongst Sunni Muslims is, or is not, affirmed by of their faith, having been Act, 1937, ceased to be
belonging to the Hanafi ‘hadiths’, in view of the followed for more than ‘personal law’, and got
school, as valid in law, and enormous contradictions in 1400 years, and as such, transformed into ‘statutory
has been in practice the ‘hadiths’, relied upon has to be accepted as being law’, cannot be accepted,
amongst them. by the rival parties. constituent of their and is accordingly
‘personal law’. rejected.
‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of the Constitution. The practice is
not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21
of the Constitution, which are limited to state actions alone.

The practice of ‘talaq-e-biddat’ being a constituent of ‘personal law’ has a stature equal to other
fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on
the ground of being violative of the concept of the constitutional morality, through judicial intervention.

Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions,
have come about only by way of legislative intervention.

Such legislative intervention is permissible under Articles 25(2) and 44, read with entry 5 of the Concurrent
List, contained in the Seventh Schedule of the Constitution. The said procedure alone need to be followed
with reference to the practice of ‘talaq-e-biddat’, if the same is to be set aside.

International conventions and declarations are of no avail in the present controversy, because the practice of
‘talaq-e-biddat’, is a component of ‘personal law’, and has the protection of Article 25 of the Constitution.
 JUDGMENT :

• Then Chief Justice of India, Jagdish Singh Khehar

and Justice S. Abdul Nazeer, together held the
dissenting view.
• In formulating the judgment, they held that the,
practice of triple talaq, was a customary practice and

Minority
it is backed by the sanction and favour of the religious
denomination which practiced it and there could be
no ambiguity as to the referred practice being a part of
their personal law.

view:
• According to them, the restricted purpose of the
Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 was to prevent the superseding
effect of usages and customs over the Muslim
personal law.
• Shariat Act recognizes the Muslim 'personal law' as
the 'rule of decision' similarly as Article 25 recognizes
the supremacy and enforceability of personal law of
all religions and faiths.
The judges were of the view that fundamental rights enlisted under Articles 14, 15 and 21 are
available against state actions.

Muslim 'personal law’ Shariat, is a matter pertaining to 'personal law' of Muslims, to be

discovered from ancient sources, it could not be tested on the parameters of being act of state.

Talaq-e-biddat is practiced by Sunni Muslims, a practice which was part of the religious belief
of those pertaining to that school and therefore their personal aspect and hence there was no
question of its being violative of the tenets of constitution, more precisely, the provisions relied
upon by the petitioners to assail the long followed practice of talaq-e-biddat.

The judges however agreed that the practice of triple talaq has been corrected by legislation in
many Islamic states and therefore were in favour of drafting a legislation that makes the
necessary amendments to the practice but not declare it void as a whole.
MAJORITY
VIEW:
• The majority view held by Justices Kurian Joseph, U.U. Lalit and
Rohinton Fali Nariman was antithetical to the aforementioned one.
• Justice Joseph and Justice Lalit were of the concurring view that to
freely profess, practice and propagate one’s religion is a fundamental
right sanctioned under the Indian Constitution.
• But on the other hand, state is also having the power under Article
25(2) of the Constitution, to make law in two eventualities in spite of
the freedom granted under clause 1, and hence the practice of talaq-e-
biddat suffers disqualification under clause 2 of Article 25.
• The judges also analyzed that the practice of triple talaq could not be
discovered in Quran. Merely because a practice had seen its
continuance for a long duration of time, that by itself could not make it
sound if it had been overtly declared to be impermissible.

Complete objective of the Act of
1937 was to proclaim Shariat as the
rule of decision and to terminate
anti- Shariat practices concerning
subjects mentioned in Section 2,
which included talaq.
Justice Nariman was also of the
similar view. He stated that after the
emergence of Islam, divorce was
allowed to a man only in conditions
if his wife by her indocility or
substandard character disturbs the
piousness of marital life.
Therefore, in any condition, after
the inception of the 1937 act, no
practice against the principles of
Quran was permissible. Hence,
such practice could not get any “Indeed, prophet had declared
constitutional protection under the divorce to be one of the most
umbrella of Article 25(1) also. disliked of lawful things in the eyes
of god.” “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.”
This form of dissolution of marriage was arbitrary in the sense that the marital bond
could be broken at the whims and caprices of the Muslim man without any attempt at
compromise or reconciliation so as top reserve it.

He therefore concluded this form of talaq to be held to be violative of the fundamental

right enumerated under Article 14 of the Constitution. He made another analysis
regarding the 1937 Act, insofar as it attempts to acknowledge and enforce triple talaq.

It was held to be within the meaning of the expression ‘laws in force’ under Article
13(1) and therefore must be demolished as being void to the extent it acknowledges
and enforces the practice of triple talaq.
 ANALYSIS:

The court in many cases The practice of talaq-e-biddat

believes that the issue can be
There was no procedure as to
resolved only through a larger
how the talaq-e-biddat should
remedy of codification of law
be exercised. Court in the
in all the cases. The search for
plethora of cases decided that
a solution of this problem lies
it cannot formulate the
in the hands of the lawmakers
procedure or give guidelines
as the law required to be
as to how it should be done.
allied with justice.
provides a male spouse an
unqualified right, to serve the
matrimonial tie. It was a right
exercised by the husband
without the disclosure of any
reason and it could also be
pronounced in the absence of
the wife and even without
their knowledge.
It was final and binding between the parties. It vested an arbitrary right in the husband
and as such violated the equality of status clause enshrined in Article 14 of the Indian
Constitution which postulates equality before the law and equal protection of the
laws.
The talaq-e-biddat violated Article 15 of the Indian Constitution, on the ground of sex.
It violated the aforesaid fundamental right which postulates equality between men and
women.

The rights of the female partner in a matrimonial alliances gender discrimination

which amount to violating their human rights under Article 21 of the Indian
constitution.

The rights of a Muslim woman to human dignity, social esteem and self worth were
vital facets of a woman’s right to life under Article 21 of the Indian constitution.
THANK YOU