Citation - (2017) 9 SCC 1
Judgement dated - 22/08/2017
Bench – Hon’ble Justice Jagdish Singh Khehar, Hon’ble Justice Kurian Joseph, Hon’ble Justice Rohinton Fali Nariman, Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice S. Abdul Nazeer
Petitioner/Appellant: Shayara Bano
Defendant/Respondent: Union Of India And Ors. and Ministry Of Women And Child Development Secretary
Court: Supreme Court of India
Statutes Referred: - Constitution of India; Article 14, 15(1), 21, 21(a), 25, Code of Criminal Procedure, 1973; Section 125.
A case was filed by Shayara Bano against the union of India and others, and the ministry of women and child development secretary. Shayara Bano is a woman from the Muslim community. She was married to Rizwan Ahmed for 15 years then they got divorced in 2016 via talaq-e-bidat.. Triple talaq is one of the ways to give divorce in the Muslim community. Where the man by saying the word “talaq” three times consecutively to his wife divorce the woman immediately. The case was all about whether triple talaq should be abolished or not.
The women of the Muslim community like the other female of the country are behind in quality education and self-sufficiency. They are not allowed to study, work, etc. they have restrictions. Therefore, the duty of the husband after divorce increases because he has to provide maintenance to the wife after divorce.
Rizwan Ahmed was Shayara Bano's husband for 15 years. Her husband divorced her in 2016 via her talaq-e-bidat (triple talaq). Bano, citing Articles 14, 15, 21, and 25 of the constitution, has declared Practices such as triple talaq, polygamy, and nikah halala illegal.
Whether fundamental rights are infringed by the ongoing use of Triple Talaq. Whether or not the practice of talaq-e-bidat is permissible?
Arguments from the Petitioner’s side
Counsel: Balaji Srinivasan for Shayara Bano
1. Amit Chadha represented Shayara Bano in the Shayara Bano v. union of India. According to Shayara Bano's leading attorney, the Shariat Act of 1937 does not recognize triple talaq as a form of divorce. He points out that various High Courts and Supreme Court rulings limit the unilateral right of Muslim men to divorce women, and the triple talaq, which he says is not recognized by the Quran.
2. Moreover, the ruling confirms that the Quran allows divorce for a good cause if it is preceded by an attempt at reconciliation. If He asked the court to annul the Triple Talaq, arguing that it violated Articles 14 and 15 of the Indian Constitution by giving Muslim men full divorce rights.
3. He concluded by stating that if the triple talaq was abolished, the Muslim Marriage Act of 1939 if abolished, would become the principle of divorce for Muslims and would apply equally to all Muslims regardless of gender.
Arguments from the defendant’s side
Counsel: Mukesh Kumar Maroria for Union of India and Ors.
1. Kapil Sibal first clarifies that the 1937 Sharia law does not define a substantive Muslim personal law, but that Sharia is the standard for judging Muslims, regardless of traditions and practices to the contrary. Repeat that should apply. He argued that the purpose of the law was to eliminate practices that prejudiced women with respect to inheritance. Furthermore, since marriage is a private contract governed by Islamic law, official regulations change marriage.
2. Sibal has led the debate in the Constituent Assembly, arguing that personal law is not included in the concept of Article 13 rights. He pointed out that Congress rejected amendments that sought to add "and other" to describe the law in question, and to add such law under Article 13. He said the competing list explicitly referred to human law and removed it from Article 13, indicating a desire by constitutional authors to exclude human law.
3. He argued that the constitution empowers parliament to pass social reform laws regulating secular activities related to religious observances.
Therefore, courts can assess the legitimacy of law only after Congress has passed it. Mr. Sibal cited collecting money at temples as an example of such secular activities.
4. Sibal sums up his argument by arguing that Muslim women have no prejudice against the practice of triple talaq and can even benefit from being instantly freed from a dreaded marriage. He recommended four ways for Muslim women to protect themselves from the discriminatory use of triple talaq.
5. She can register the marriage under the Special Marriage Act of 1954, and she can include prerequisites in the nikahnama to prevent her husband from practicing triple talaq.
6. She can also entrust the right to talaq to herself, and she can demand a large Mehar amount to dissuade triple talaq.
The court held that the practice was unlawful by 3.2 majorities after 6 days of arguments from both sides. The court ordered Parliament to pass legislation prohibiting the practice of triple talaq. The Supreme Court's five judges bench declared that the Shariat act of 1937 does not control triple talaq.
According to Justices Rohinton Nariman and Justice Uday Lalit, Muslim Law Proposal (Shariat) 8 of 1937 provides for talaq-e-biddat. They argued that the act was clearly arbitrary and unconstitutional. Judge Kurian Joseph unanimously said that triple talaqs are prohibited in the Qur'an and therefore have no legal right. . He said, "What is considered wrong in the Holy Quran is not good in Shariat, and what is bad in theology is bad in law."
In particular, the minority dissents of Chief Justice Khehar and Justice Abdul Nazeer, in their debates on Articles 25 and 44 of the Constituent Assembly, linked the status of fundamental rights to the elevation of the law of the person, which is the statute of law. Said to be a unique aspect. As a result, Article 25 protects him. Furthermore, while the legislation does not challenge the constitutionality of talaq-e-biddat's gender-discriminatory practices, is a remedy for.
The Triple Talaq decision was undoubtedly a landmark decision in this country, especially when it comes to private law. It has presented us with a variety of ways to deal with them, most notably Judge Joseph's "culture-based" decision. This decision clearly shows that the Supreme Court has learned from past mistakes in the field of personal law.
Despite the lack of clarity on gender justice and inequality in personal law and how to address it, this was a positive step. Husbands could no longer leave their wives on the basis of whim or vanity, breaking off the relationship. The courts have found that equality, especially gender equality, is not just a theoretical concept. Meanwhile, the public is concerned about the position of minority banks.
The Judgement of the case was in the favour of Shyara bano. According to me the decision made by the judges was absolutely right. The use of triple talaq was taking away rights of the person provided by the constitution. Triple talaq was not even justified by the Shariat law or Quran. The abolition of triple talaq was a great step taken by our hon’ble judges. Many articles of the constitution were getting affected by the practice of triple talaq. Now, triple talaq is abolished in India and the person practicing triple talaq will be facing consequences. Triple talaq law is disastrous for Muslim women. It has increased difficulties for Muslim women,” tweeted All India Muslim Personal Law Board.
First, the plethora of divorced Muslim women shows greater numbers than divorced Muslim men, despite the less stigma attached to remarriage (unlike Hindus, Muslims Second, Muslim women are more likely to live in poverty and have lower labor force participation rates in the formal sector. Many will be driven into deep poverty if left without. Third, the requirement to remarry with the same husband if the triple talak is at fault will prevent women from taking advantage of that option. Finally, neither partner should have the right to a unilateral divorce.
An analysis of five states with a higher percentage of Muslims in the population than the Indian average of 14% found that the divorce rate for Muslim women was far higher than that for women of all religions except J and K. For years, feminists, especially Muslim feminists, have campaigned for reform of Muslim personal laws, including the abolition of the triple talak. , Parsi and Jain women are said to have been given greater legal protection. But that's not radical feminism, and grooming is also problematic for non-Muslim women. Since a Muslim marriage is a civil contract between two adults, the procedure for its dissolution must also be civil in nature.
In conclusion, the gender gap in Muslim divorce rates provides a more compelling argument for abolishing the triple talak than the difference between Muslim and Hindu women. This and the position of Bharatiya Muslim Mahila Andolan, along with 1,000 registered Shayara Bano supporters, should be taken into consideration when making a judgment. This law improves the condition of human rights and gender equality. After implementation of this law, Womens and their childrens would get an allowance or we can say fixed amount after divorce.
This article is written by Vaibhav karotia of Maharaja Agrasen Institute of Management Studies.