September 30, 2022

Case Comment: Shayara Bano Vs. Union of India and ors.

This case comment is being written by Awaljot Kaur. she is a law student of Department of Laws, Panjab University Chandigarh.

Popularly known as ‘Triple Talaq Case’[1]

Landmark case to check the constitutional validity of Talaq-ul-Biddat which includes the triple talaq.

Court:- The Hon’ble Supreme Court Of India[2]

Bench of Judges:- Chief Justice of India Jagdish Singh Kehar, Justice Kurian Joseph,

Justice Rohinton Fali Nariman, Justice Uday Lalit, Justice J Abdul Nazeer.

Type of Petition:- Writ Petition no 118 of 2016. Suo Moto[3] by Hon’ble Supreme court.

Facts

Shayara Bano was married to Rizwan Ahmad for 15 years and then he, divorced her in 2016, by the way of Talaq-ul-biddat(triple talaq). She immediately filed a writ petition in Supreme Court, to hold the constitutional validity of these three practices under muslim law.

  1. Talaq- ul- Biddat( (Type of divorce in sunni muslims)
  2. Polygamy (Practice of having more than one partner at a time)
  3. Nikah Halala (A practice in Muslims when women is divorced by Triple Talaq, and marries anonther man)

Relevance in Muslim Law

Under Muslim law, Divorce is broadly divided under the following categories:-

  1.  By the death of husband(deceased spouse)
  2.  By the act of the parties (either of them)

Further, they are classified on basis of either husband or wife.

  1. By Husband:-

a) Talaq

b) Talaq-us-Sunnat

  • Ahsan
  • Hasan
    • ( Talaq-ul-Biddat)

c) Ila (When husband vows to refrain from the sexual relations with his wife for four months, and if he succeds, marriage is dissolved)

d) Zihar (Considering his wife akin to his family and is considered condemed under law)

2) By the Wife

 Talaq- e – Tafweez (Husband can delegate the right to his wife or the third person in order to gie divorce)

3)  By Mutual Consent

  • Khula (When the couple gets divorced if the wife returns the dower or anything she recieved at time of marriage)
  • Mubarat (Mutual decision to free each other from the relation)

4) By Judicial Process

  • Lian (If there are remarks of unchastity by husband, women can ask for divorce)
  • Faskh (Divorce by Islamic Court when wife wants divorce but husband refuses to grant)

All these divorces have a valid stand in the Islam or Muslim law whereas, Talaq-ul-Biddat is a topic of constant debate. This is known as Triple Talaq and was challenged before the Supreme Court in this case. Talak-ul-biddat is even though banned in Shia Muslims, and in Hanafi School it is thought to be sinful but is practiced by a large Muslim community who follow Hanafi Muslim School. In this type of Talaq the Husband neither follows the approved form of Talaq i.e. talaq-ul-sunnat and he nor waits for Iddat or abstention from sexual intercourse. This is an escape route by the Islamic patriarchal society to avoid their marriage.

In this type of divorce, husband gives divorce just by saying talaq in one sentence three times consecutively. The main issue with this type of divorce is that it is IRREVOCABLE unlike the other options.

Issues:-

  1. Whether the practice of talaq-ul- biddat is an essential religious part of Islam?
  2. Whether the practice of triple talaq violates any fundamental rights?
  3. The constitutional validity of Triple Talaq?

Judgment:-

The Supreme Court laid down the judgment on August 22, 2017 with 3:2 majorities holding the practice of Triple Talaq unconstitutional. The majority judgment was written by Justice Nariman for himself and on the behalf of Justice Lalit, whereas Justice Joseph synchronized by the majority opinion, Chief Justice Kehar for himself and on behalf of Justice Nazeer wrote the minority opinion that even though the concept of this is not regulated under the Shariat Act, but it lies as an integral part of Muslim Personal Law. While the majority upon awaited decision came to the conclusion that Triple Talaq is not an essential religious practice but minority bench stuck on the opinion that this practice is an essential religious practice in Islam. Justice Kurian Joseph on the other hand, in his coinciding opinion, noted that triple talaq is against the Quran, and thus does not stands on legal grounds.. He wrote, “What is held to be bad by the holy Quran cannot be held well in Shariat and, what is bad in theology is bad in law too”.

Analysis:-

The Triple Talaq judgment is even though widely appreciated throughout the jurisdictions as to be a protection shield against the social evil such as this practice was promoted. The majority bench on the face of it held the government liable for not making relevant laws to prohibit such a morally incorrect practice. This act allowed the husband to end the marital tie on his whims and fancies, thereby leaving the life of the women hell. The Muslim women have from many years demanding the protection from such a regressive and bad practice and finally it was the apex court which gave them the most appropriate remedy. Justice Nariman at the outset said that as soon as he comes across or find any violation of Fundamental Right, he will strike down the practice, without thinking there was no question to be answered that the said practice is an essential practice or not since majority of Islamic nations had already banned the practice & in India only Hanafi Muslim School practices it. Therefore, it cannot be said that the practice holds any religious importance. The majority finding the said practice in violation of Article 14[4] as well as the exceptions laid down under Article 25(1)[5] struck down the act with 3:2 majorities. The bench observed that merely because the practice is widespread and continuing from time it cannot be held to be as an essential religious practice. In, Hinduism also after finding Sati Pratha to be a malpractice, Raja Ram Mohan Roy removed it from the religion. Sati was also practiced widespread and practiced since long. Therefore, the court arrived at a very appropriate judgment.

Conclusion on basis of opinion of common people:-

Triple Talaq is considered to a barbaric practice which has almost from decades ruined the lives of Muslim women leading them into either suicidal attempts or making their life hell. Hundreds of cases are reported on daily basis for this practice. And, finally thanks to the Hon’ble Supreme Court for giving the most required and appropriate judgment. Even after declaring this practice illegal, many cases were reported as a result of which the parliament made a provision to add on punishment upto 3 years if anyone practices this. Thus, the decision of the court was welcomed

whole heartedly and applauded as it not only empowered the Muslim women with their rights but also made their life less miserable.


[1] (Talaq-e-Biddat, Type of Divorce in Sunni Hanafi Islamic school of law.)

[2] (Apex Court of India)

[3] (Instances where High court or Supreme court using their powers, tranfer the case to themselves)

[4] (Right to equality befor law in the Indian territory)

[5] (Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience)

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Awaljot Kaur
Dept of Laws, Panjab University, Chandigarh.


Awaljot is a Student of legal studies at Panjab University, She mainly has interest towards field of criminal law and Aditional dispute resolution. She has interned many organization and recently with Advocate on record of Supreme Court Mr. Deepak Dayal, and currently interning with Additional Soliscter General to government of Jharkhand. She is also an NSS volunteer for 3 years and love imparting the light of knowledge to underprivileged children

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