CASE DETAILS-

Name of the case: Shayara Bano v. Union of India

Citation: AIR 2017 9 SCC 1 (SC)

Date of Judgment: 22nd August 2017

Parties Involved: Sharayar Bano and others, All India Muslim Personal Law Board (AIMPLB),
Union of India

Bench: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Niraman,
Justice Uday Lalit, Justice K.M. Joseph.

Laws and Acts applied in the case: Muslim Personal Law (Sharait) Act 1937, Article 14, 15,
21, 25 of the Indian constitution.

INTRODUCTION-
The Supreme Court issued a landmark decision on the constitutional validity of "Talaq-e-
Biddat," also known as "Triple Talaq," one of three male-initiated divorces in the Muslim
community, the other two being "Talaq ahasan" and "Talaq Hasan."Without the state's
intervention, a Muslim man can instantly divorce his wife by repeating "talaq" in one sitting. The
means of communication could be written, oral, or even electronic, in this case, increasing a
woman's vulnerability in an arbitrary and unilateral divorce. Shayara Bano was married to
Rizwan Ahmed for 15 years when she filed the lawsuit Shayara Bano and others v. Union of
India. He divorced her in 2016 with an instant triple talaq ( talaq-e-biddat ). She filed a writ
petition in the Supreme Court, requesting that three practices be held unconstitutional-
● Talaq-e-biddat
● Polygamy
● Nikah halala
Talaq e biddat is a practice that allows a man to divorce his wife without her consent by saying
talaq three times in one sitting. Nikah halala is a practice in which a divorced woman who wants
to remarry her husband must marry a second husband and obtain a divorce from him before
returning to her first husband. Polygamy, on the other hand, is a practice that allows Muslim
men to have multiple wives.
This contentious custom, which intersects gender identity and community, has left Muslim
women vulnerable to abuse and in a morbid state, especially given the socio-economic aspect,
where the majority of women are financially dependent on their spouse, and the added fear of
this arbitrary divorce leaves many cases of marital abuse unreported. As a result of the pressing
need to address the aforementioned issue, the Supreme Court in Shayara Bano v. Union of
India3 declared this custom unconstitutional by a 3:2 ratio. This judgement had a ripple effect on
various aspects of Constitutional Law, particularly in the context of Fundamental Rights and
their relationship to the country's laws, as well as the social aspect of gender justice, which the
judgement, unfortunately, does not discuss in detail because it focuses primarily on the validity
of Triple Talaq concerning marriage as an institution.
TRIPLE TALAQ IN INDIAN COURTS-
In two Gauhati High Court judgments, Justice Baharul Islam rejected the argument that triple
talaq was legal even if it was not theoretically sound. Various judgments in favour and against
this custom were issued over the next two decades. One of the most critical cases was Shamin
Aru v. State of Uttar Pradesh in 2002, which laid out the requirements for a valid talaq. Although
it did not directly address the triple talaq, it did spark a discussion about what constitutes a valid
talaq. This case was later used as a binding precedent to show why triple talaq is
unconstitutional. The Supreme Court of India asked Shayara Bano, the Union of India, various
women's rights organisations, and the all-India Muslim personal law board to submit written
submissions on the issue of talaq-e-biddat nikah halala and polygamy on February 16, 2017. Ms
Bano's claim that these practises are unconstitutional was supported by the Union of India and
women's rights organisations like Bebaak Collective and Bhartiya Muslim Mahila Andolan.

ABOUT THE ACTS AND LAWS MENTIONED-

● Article 14 of the Indian Constitution- Equality before law The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of
India Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth
● Article 15 of the Indian constitution- Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth
● Article 21 of the Indian constitution- Protection of life and personal liberty No person
shall be deprived of his life or personal liberty except according to procedure established
by law
● Article 25 of the Indian constitution- Freedom of conscience and free profession, practice
and propagation of religion

ARGUMENTS OF THE PETITIONER-

Mr Amit Chadha represented Shayara Bano in the case of Shayara Bano v. Union of India. The
Muslim personal law (Shariat) application act, 1937, does not recognise triple talaq as a form of
divorce, according to Shayara Bano's senior lawyer. He noted that several high courts and
supreme court decisions have limited Muslim men's unilateral right to divorce women. He
criticises the practice of triple talaq, which he claims is not sanctioned by the Quran.
Furthermore, this ruling confirms that the Quran permits divorce for good reason if an attempt at
reconciliation precedes it. He urged the court to strike down triple talaq, claiming that it violates
Articles 14 and 15 of the constitution by giving Muslim men unrestricted power to divorce their
wives.
He concluded by stating that if triple talaq is repealed, the dissolution of the Muslim marriage act
of 1939 would be the law of divorce for Muslims, which would apply equally to all Muslims,
regardless of gender.

ARGUEMENTS OF THE RESPONDANT-

Mr Kapil Sibal clarified in Shayara Bano v. Union of India that the Shariat Act 1937 does not
codify substantive Muslim personal law but that the Sharia shall apply as a rule of decision to
Muslims, overriding any custom or usage to the contrary. He claimed that the act's goal was to
eliminate customs that discriminated against women regarding inheritance. Furthermore, no
state legislation can change marriage because it is a private contract governed by Islamic law.
Mr Sibal uses the debates in the Constituent Assembly to argue that personal laws are not
included in the definition of law under Article 13. He noted that the assembly had rejected an
amendment that sought to add "and anything else" to the definition of law under consideration,
as well as the inclusion of such law under article 13. He claimed that the concurrent list's explicit
mention of personal law and its absence from article 13 demonstrate the constitution's makers'
intent to exclude it. He argued that the constitution gives Parliament the authority to pass social
reform legislation governing secular activities related to religious practices. As a result, a court
can only judge the law's validity after Parliament has passed it.
Mr Sibal wrapped up his arguments by claiming that Muslim women are not discriminated
against under the triple talaq rule. On the contrary, they may even benefit from immediate relief
from bad marriages. He proposed some options for Muslim women to protect themselves from
triple talaq's discriminatory use- She can register the marriage under the Special Marriage Act
of 1954, add conditions to the nikahnama to prevent her husband from exercising triple talaq,
delegate the right to talaq to herself, and insist on a high Mehar amount to deter triple talaq.

ISSUES-
● Whether or not the practice of talaq e biddat (specifically, instantaneous triple talaq / an
essential Islamic practise) is permissible.
● Whether triple talaq is a violation of any fundamental rights.

JUDGEMENT-
The five-judge bench offered three different lines of reasoning. Former Chief Justice Jagdish
Singh Khehar and Justice S. Abdul Nazeer wrote the minority opinion. Justice Rohinton Fali
Niraman and Justice Uday Lalit, the majority judges, delivered their views together. At the same
time, Justice K.M. Joseph took a completely different approach but came to the same
conclusion, resulting in a 3:2 ratio. According to Justices Rohinton Nariman and Uday Lalit, the
Muslim personal law (Shariat) application 8, 1937 regulates talaq e biddat. They argued that the
practice is unconstitutional because it is arbitrary. In his concurring opinion, Justice Kurian
Joseph stated that triple talaq is prohibited by the Quran and thus has no legal standing. "What
is considered bad in the Holy Quran cannot be considered good in Shariat, and what is bad in
theology is bad in law," he wrote. Notably, Chief Justice Khehar and Justice Abdul Nazeer's
dissenting minority opinion traced the elevation of personal law to the status of fundamental
rights in the constituent assembly debate on Articles 25 and 44. They claimed that the Shariat
act of 1937 does not regulate triple talaq but is inherent in personal law. As a result, article 25
protects it.
Furthermore, legislation, not a challenge to the constitutionality of the gender discriminatory
practice of talaq e biddat, is the solution to the gender discriminatory practice of talaq e biddat.
The Indian Supreme Court declared instant triple talaq, or talaq e biddat, unconstitutional on
August 22, 2017. The practice of triple talaq was declared illegal and unconstitutional by the
Indian Parliament on July 30, 2019, and it became a punishable act on August 1, 2019, with
effect from September 19, 2018.
ROLE OF PERSONAL AND CONSTITUTIONAL LAW-
The Court's decision appears to be correct on the surface. However, most judges' approaches
appear to differ, sparking a debate about how to approach personal law in a secular country like
India. In addition, it raises when judges should be allowed to rule on the constitutionality of an
uncodified practice like triple talaq. Therefore, justice Khehar examines it not from the
perspective of Muslim law but rather from the standpoint of the constitution to see if it is valid
under it. Justice Khehar responds along the lines of the opposition's argument that the State did
not enact personal law and that only State enacted law can be subjected to Fundamental
Rights. However, the major flaw in the following argument is that a practice that is authorised
and enacted by the State, even though it is not codified under personal law, is not within the
scope of the sovereign's law. We can see from Justice Niraman's argument that he considers
triple talaq to be "law in force" under Article 13 of the Constitution. With the very reasonable
argument that, because Section 211 of the Muslim Personal Law (Sharait) Act 1937 grants talaq
general authority, it falls under the jurisdiction of state laws.

Thus, the obvious question that confronts us here is whether any relevant fundamental rights,
specifically Articles 14 and 15 which cover the Right to Equality, are being violated, or whether it
can be saved by a fundamental right like the Right to Religion (Article 25).

RIGHT TO EQUALITY (ARTICLE 14)-

Article 14 violations can be detected through a reasonable classification test and the use of
arbitrariness. The practice is largely void due to arbitrariness, according to Justice Niraman.
However, it appears that his conclusion was reached not because of gender inequality but
because of a religiously-based belief that triple talaq is arbitrary. He does not show how
inequality exists per se; instead, he emphasises that this type of divorce is arbitrary because
there is no way to reconcile. As many scholars of the problem of arbitrariness have pointed out,
it simply shifts the focus to arbitrariness.

GENDER AND CONSTITUTION-

The in-depth analysis of gender inequality is notably absent from the judgement. Surprisingly,
the petitioners did not highlight the inherent discrimination between husband and wife, instead
of focusing on the practice of triple talaq being un-Islamic rather than the ills of the practice. This
sparked a political debate about cultural minorities vs modernity. Minority organisations such as
the All India Muslim Personal Law Board saw this as a test of their Muslim identity. In addition,
the Muslim community was enraged by a plea to invoke the Uniform Civil Code and the Court's
negative comments about the Prophet and Islam, which five Hindu male judges delivered. All of
this resulted in establishing clear lines, forcing Muslim women to choose between their religion
and their gender claims. 16 As a result, Shah Bano renounced divorce maintenance completely.
Thankfully, nothing along those lines has occurred in this case. However, perhaps out of fear of
a similar outcome, the Court almost completely overlooked such an important aspect of equality.
As a result, when passing judgement on equality, the institution of marriage was given a higher
priority.

RIGHT TO FREEDOM OF RELIGION-

In terms of religious aspects, Justice Niraman did not agree that it would be protected under
Article 25 because it only protects practices that are an integral part of the religion, which many
scholars and commentators on Sharia have said is not the case. While discussing triple talaq,
particularly the religious aspect of the case, Justice Joseph, while agreeing with Justice
Niraman, took a different path to reach the same conclusion. First, he disagreed with Justice
Niram that judges should not make religious decisions. Justice Joseph goes so far as to say that
when a private law is unclear on a specific issue, it is up to the judge to determine what the law
means. As a result, the judge, in this case, must decide what the given scenario of the particular
practise or custom is because no one else can. Second, he examined the case entirely from a
cultural perspective, ignoring the constitutional aspect because he believed that only the legal
sanity of triple talaq in Muslim personal law needed to be determined. As a result, we can see
that Justice Joseph deftly reaches the same conclusion as many others without resorting to
constitutional rights, secularism, or a uniform civil code. Instead, he primarily relies on Muslim
Law commentaries and judgments based on Muslim Law commentaries by Muslim Judges –
which was crucial in invalidating the triple talaq and maintaining a politically viable judgement
without causing a lot of communal backlash or tension.

CONCLUSION-
Without a doubt, the triple talaq decision has become a landmark decision in this country,
particularly in terms of private law. It has provided us with various options for dealing with them,
particularly Justice Joseph's "culturally grounded" decision. This decision demonstrated that the
Supreme Court has learned from its previous mistakes in the area of personal law. Even though
it lacked clarity on gender justice and inequality in personal laws and how they should be dealt
with, it was a positive step forward. It also did not say whether "setting aside" triple talaq meant
that it had no legal consequences or that three utterances meant one. It is unquestionably a
step toward equality, and it has provided a foundation for future personal law and social
amendments. This decision also dealt with minorities in an efficient manner, which is a step
toward secularism. It is hoped that this decision will be reviewed in the light of day and that it will
assist Muslim women in living a better and more secure life as guaranteed by the law of the
land.

PERSONAL COMMENTS-
While reading up about the case, several questions came up in my mind- Is personal liberty
more important than societal norms? What even are societal norms? Can social norms evolve
organically, or does the Court have to intervene in the same? When do the said norms become
obsolete and arbitrary? Even though this is a dispute between two individuals, it cannot be
isolated from our society. The individual and the social structure are interrelated institutions.
Thus from my understanding, it is only fitting to stand up against orthodox practices even if they
are essential to religion. Religion is a social institution, and it would be pretty ironic if it hampers
the growth of those who created it. Our society is an evolving organism- one can only expect
religious norms to alter in order for the same to survive. Thus, the decision of the Court is
correct in my opinion. There are different nuances to the judgement- the practice, as mentioned
earlier, is said to be invalid as there is no mention of triple talaq in the Quran. However, there
are other sources of Muslim personal law. I can also draw a similarity between the case in
question and how, on December 4, 1829, the sati pratha was abolished on the ground that it is
not mentioned in the Hindu religious text. It seems almost as if religious practices are given
more importance than the fundamental human rights of women. Even in modern days, it is not
abnormal to see discrimination against women shrouded in the guise of religion. The Sabrimala
Temple case is also an example of the same.
The judgement is a good cornerstone for bettering the position of women in the country. One
can only hope it gets better.

REFERENCES-
● BBC, Triple Talaq: How Indian Muslim Women Fought, and Won, the Divorce Battle,
August 22,
● Gopika Solanki,Adjudication In Religious Family Laws: Cultural Accommodation,
LegalPluralism, and Gender Equality in India (Cambridge University Press 2007) 132.
● AIR (2017) 9 SCC 1 (SC)
● Asaf AA Fyzee, Outlines of Muhammadan Law (3rd edn, Oxford University Press 1964)
147.
● (1906) 8 BOMLR 35.
● Yousuf Rawther v Sowramma AIR 1971 Ker 261.
● Jiauddin Ahmed v Anwara Begum (1981) 1 GLR 358; Rukia Khatun v Abdul Khalique
Laskar (1981) 1 GLR 375.
● AIR 2002 SCC 3551
● Prakash v Phulavati (2016) 2 SCC 36.
● Bhattacharjee (n 37) 85.
● Application of Personal law to Muslims. Section 2 —Notwithstanding any custom or
usage to the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal property
inherited or obtained under contract or gift or any other provision of Personal Law,
marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other
than charities and charitable institutions and charitable and religious endowments) the
rule of decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat).
● Budhan Chaudhary v. State of Bihar .
● E.P Royappa v. State of Tamil Nadu AIR 1974 SC 555.
● Commentators have criticized the arbitrariness doctrine for being incoherent and only
weakly connected to the idea of equality. For a critical account of both the ‘old’ and ‘new’
tests, See, Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’ in Sujit
Choudhry, PratapBhanu Mehta and Madhav Khosla (eds),The Oxford Handbook of
Indian Constitutional Law (Oxford University Press 2016) 699-719.
● AIR 1985 SC 945.
● Flavia agnes, “Muslim Women’s Rights and Media Coverage” 15 EPW 22 (2016).17.
Most political parties welcomed the verdict, though for different reasons. Jamiat-i-Ulema
openly refused to abide by it, but AIMPLB accepted it as an affirmation of its own
position on triple talaq.
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writ-petition-c-no-118-of-2016/
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