SHAYARA BANO V. UNION OF INDIA AIR 2017 9 SCC 1 (SC)

INTRODUCTION

The famous Shayara Bano case is called the triple talaq case held in 2017. Where the husband just by saying ‘talaq’ ‘talaq’ ‘talaq’ three times divorces them whenever and wherever they want.



According to Muslim Law, divorced can happen in four ways:

1. By husband

2. By wife

3. By mutual consent

4. Judicial proceedings

Talking about the first concept where husband can initiate the divorce in two ways;

a) Talaq-e-sunnat (Talaq-e-ahsan & Talaq-e-hasan)

b) Talaq-e-biddat



Sunnat means something that confirms tradition.

Biddat means innovation. Talaq-e-biddat is also called Triple Talaq. Where the husband can dissolve the marriage at once by repeating “Talaq” three times in person or through WhatsApp (any social media), email or notice. There is no time given to the wife for arbitration or settlement. The superlatives of very good, good and bad; Talaq-e-biddat is a bad form of talaq. In this form of divorce there is absence of pre-requisite of arbitration and reconciliation. It is a disapproving form of talaq. India is not the only country which considers Talaq-e-biddat or instant Triple Talaq as a bad form of Talaq, many other pre-dominant Muslim countries also believes the same.

The practice of Triple Talaq was challenges in the case of ;

Shayara Bano Vs. Union of India



FACTS OF THE CASE

● The petitioner Shayara Bano and the respondent Rizwan Ahmed were married for 15 years.

● In 2016 Rizwan gave instant Triple Talaq to shayara Bano

● Shayara Bano filled a writ petition in Supreme Court challenging the validity of three practices which includes; Instant Triple Talaq, Nikah Halala & Polygamy as they violate Articles 14, 15 , 21 , 25 of the constitution.


ISSUES

● Whether Instant Triple Talaq is an essential religious Practice of Islam.

● Whether the practice of Triple Talaq is Violative of Fundamental Rights.



LAWS INVOLVED

Instant Triple Talaq/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 divorced woman who wants to remarry her husband would have to marry, and obtain divorce, from a second husband before she can go back to her first husband.


Polygamy

is a practice which allows Muslim men to have more than one wife.



JUDGEMENT

On 30th March, 2017 the constitutional bench of five judges was constituted for the hearing of Triple Talaq Case which were; CJI Jagdish Khehar, J. Abdul Nazeer, J. Kurian Joseph, J. Rohinton Nariman and J. U Lalit. The first hearing was on 11th May, 2017. In the above situation All India Muslim Board said that the three laws mentioned above i.e., Instant Triple Talaq, Nikah Halala & Polygamy are part of Muslim religion and are outside the jurisdiction of Supreme Court so the Court should not interfere in the religious matter. After receiving the written statements from both the parties as asked by the Court, the Court held that;



● CJI Jagdish Khehar and J. Abdul Nazeer said that practice of Triple Talaq is a part of Muslim law and Article 25 of constitution has given Right to Religion to every person and through this Article these practices are in a way protected . So, the Court cannot interfere in this matter. They also mentioned that the practice of Triple Talaq should be banned or not can be decided by the Parliament and not by Judiciary. They suggested in this regard that the Judiciary can put this practice of Triple Talaq on hold for six months and till then Parliament can decide about the validity of Triple Talaq.



● J. Nariman and J. Lalit mentioned that whether any law is in force before the constitution or after constitution, all the laws should be consistent with the Fundamental Rights except Article 13 which cannot interfere in personal laws. They both believed that the Supreme Court can declare Triple Talaq unconstitutional under Article 14, as it states that if any practice is arbitrary in nature or violates the Fundamental Right it should be declared unconstitutional.


● J. Joseph said that the practice of instant Triple Talaq is Un-Islamic. He mentioned that Triple Talaq lacks Arbitration and Reconciliation.


● On 22 August 2017, by majority of 3:5 , the constitutional bench of five judges declared the practice of Instant Triple Talaq as Illegal and directed the centre to make a law regarding this.



Conclusion

In August, 2017 Supreme Court declared Triple Talaq as illegal but after that also there were many repeated instances of violations. So, to prevent these instances, In December, 2017 Lok Sabha passes Muslim (Protection of Rights on marriage) Bill 2017 but this bill was lapsed in Rajya Sabha. Later, In September 2017 Cabinet passed an Ordinance in which Triple Talaq was declared as a punishable offence with 3 years of imprisonment. Finally in July, 2019 the bill passes both in Lok Sabha and Rajya Sabha and receives assent of the President.The Triple Talaq judgement is widely regarded throughout the jurisdictions as a safeguard against social evils. Because of the astute and justified reasoning provided by the majority bench of the Supreme Court, India finally abolished the regressive and immoral practice of instantaneous Triple Talaq.



This article is written by Deepika Srivastava of New Law College, Bharati Vidyapeeth, Pune.

Recent Posts

See All

Heading – John Ryland and John Horrocks vs Thomas Fletcher Citation –John Ryland and John Horrocks vs Thomas Fletcher (1868) UKHL 1, (1868) L.R. 3 H.L. 330 Names Of Judges Involved in the Judgment – L