November 1, 2020

Case Brief: Shayara Bano and others v. Union of India and others, writ petition (C) No. 118 of 2016

Court : Hon’ble Supreme Court of India.

Bench:

· CJI Jagdish Singh.

· Justice Kurian Joseph.

· Justice Rohinton Fali Nariman.

· Justice Uday Lalit.

· Justice J Abdul Nazeer.

Brief facts :

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq ( talaq-e-biddat ). She file a writ petition in the supreme court asking it to hold 3 practices:

· Talaq-e-biddat

· Polygamy

· Nikah halala

Unconstitutional as they violate Article 14, 15, 21, 25 of the constitution.

Talaq e biddat is a practice which gives a man the right to divorce to his wife by uttering talaq three times in one sitting without his wife’s consent. Nikah halala is a practice where a divorce women who wants to remarry her husband would have to marry, and obtain divorce, from the second husband before she goes back to her first husband. And polygamy is a practice which allows Muslim men’s to have more than one wife.

on 16th of February 2017, the supreme court asked Shayara Bano, the Union of India comma various women’s rights bodies, and all India Muslim personal law board to give written submission on the issue of talaq-e-biddat, nikah halala and polygamy. The Union of India and the women’s right organisation like Bebaak collective and Bhartiya Muslim Mahila Andolan supported the Ms Bano’s plea that these practices are unconstitutional. The AIMPLB has argue that an 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 the Sahara Bano’s petition, the Apex court formed a five judge constitutional bench on 30th March 2017. The first hearing was on 11th May 2017. On 22nd of August 2017, the five judge bench pronounced its decision in the triple talaq case declaring that the practice was unconstitutional by a 3:2 majority.

Issues :

· Whether the practice of talaq e biddat (specifically instantaneous triple talaq / an essential practice of Islam).

· Whether the practice of triple talaq violates any fundamental rights.

Important arguments:

Arguments of Shayara Bano ( Petitioner) :-

Mr Amit Chadha. Senior advocate representing Shayara Bano began by arguing that triple talaq is not a form of divorce recognised by the Muslim personal law ( shariat ) application act, 1937. He pointed out that several high courts and supreme court decision have restricted the unilateral tar 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.

Arguments by respondent :-

Mr Kapil sibal first clarify that the shariat act 1937 does not codify substansive 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 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 :

1. She may register the marriage under the special marriage act, 1954

2. she can insert conditions into the nikahnama to prohibit her husband from exercising a triple talaq

3. she delegate the right to talaq to herself

4. insist on the payment of a high mehar amount to deter the exercise of triple talaq.

Judgement :

On 22 of August 2017, the five judges bench of the supreme court pronounced is its decision in the triple talaq case, declaring that the practice was unconstitutional by a 3:2 majority. After 6 days of arguments from both side, it reserved the case for judgement.

The court directed the Parliament to take legislative measures against the practice of triple talaq.

Justice Rohinton Nariman and Uday Lalit held that talaq e biddat is regulated by the Muslim personal law (shariat) application 8, 1937. They held the practice is unconstitutional because it is manifestly arbitrary in nature. Justice Kurian Joseph on the other hand, in his concurring opinion, noted that triple talaq is against the Quran, and thus lack legal sanction. He wrote, “what is held to be bad in the holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”.

Notably, the dissenting minority opinion of chief justice Khehar and Justice Abdul Nazeer traced the elevation of personal law to the status of fundamental rights in the constituent assembly debate on Article 25 and 44. They held that triple talaq is not regulated by the shariat act of 1937, but is an intrinsic part of personal law. Thus, it is protected by article 25. Further, the solution to the gender discriminatory practice of talaq e biddat is legislative action and not a challenge to its constitutionality.

Present status of the judgement ( whether still applicable or over ruled) :- yes it is still applicable. On 22nd August 2017 Indian Supreme Court beamed instant triple talaq or talaq e biddat unconstitutional. On 30th July 2019, Parliament of India declared the practice of triple talaq as illegal, unconstitutional and made it punishable act from 1st August 2019 which is deemed to be in effect from 19th September 2018.

Contributed by: Anima Yadav

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