This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article gives an analysis of the case and explains brief facts, issues, and judgments delivered by the court. It further discusses the obiter dictum and analyzes its relevance in the present. 

This article has been published by Sneha Mahawar.

Introduction 

Muslim Law, or Mohemmadan Law, is another personal law besides Hindu law which governs both the sects of Muslims in India (Sunnis and Shias). However, since it is not codified and hence subject to interpretations, it is hard to identify the problems faced by many in reality. The present case is one such example that brings out the cruelty towards women in the name of divorce, especially “triple talaq” or “talaq-e-biddat”. As the name suggests, a Muslim man in this form of divorce can instantly divorce his wife by pronouncing “talaq” three times in one sitting. The two other forms of divorce, talaq-e-Hasan, and talaq-e-Ahsan, at least give some time to the husband to repent and come back, but this type, once pronounced, cannot be revoked and taken back. If the husband realises his mistake, repents his conduct and wants to marry the same girl again, he cannot do so without following the procedure of Nikah Halala wherein if the husband wants to remarry his wife again after the divorce, the woman first has to marry another man and then her current husband would initiate divorce voluntarily after which she has to observe an iddat period and then only she can marry her former husband. This is again another cruelty in itself faced by women. 

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The major impact is seen on women, whose lives are turned upside down in just a few seconds. This controversial custom has shockingly left Muslim women prone to abuse and in a morbid state, especially harming their socio-economic status as most of the women are not financially strong. Husbands are at ease as they can initiate it whenever they wish to do so, and women, on the other hand, do not have a say in this. Shayara Bano is one such woman who was the victim of this instantaneous talaq. She, unlike other women, did not remain silent and fought back due to which history was created not only in Muslim personal law but also in the way the Constitution is related to the personal laws in India.

Details of the case 

Title of the case

Shayara Bano v. Union of India

Citation 

AIR 2017 9 SCC 1 (SC) 

Name of Appellant

Shayara Bano and others 

Name of respondent

Union of India, All India Muslim Personal Law Board and Rizwan Ahmed

Court

The Supreme Court of India 

Date of judgment 

22nd August 2017

Bench 

Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench. 

Brief facts

Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in 2016, he divorced her by way of triple talaq without stating any reason. In return, she filed a writ petition in the Supreme Court challenging the constitutionality of talaq-e-biddat along with practices of polygamy and nikah halala as they infringe upon the fundamental rights of women (Article 14, 15, 21, 25). Women’s rights organisations like BEBAK collective and Bhartiya Muslim Mahila Andolan supported her. The opposition i.e. All India Muslim Personal law argued on the fact that Muslim law is not codified and hence not subject to judicial review and that divorce is a religious practice under Article 25 of the Constitution and thus protected. 

The Court accepted the petition by Shyara Bano and formed a five-judge constitutional bench in 2017. The first hearing was held on May 11, 2017, and on 22nd August of the same year, it gave its decision on the case. 

Issues involved 

  1. Whether the practice of talaq-e-biddat (instantaneous triple talaq) an essential practice in Muslim personal law and protected under Article 25 of the Indian Constitution?
  2. Whether the triple talaq infringes on the fundamental rights guaranteed under the Constitution and is unconstitutional?

Contentions of the parties 

The parties to this case have argued on various aspects of the law and articles of the Indian Constitution. These are the right to equality, the right to freedom of religion, and the right to life and personal liberty.

Arguments from the side of the petitioner

Mr. Amit Chadha, from the side of the petitioner, presented that triple talaq was never recognised in the Shariat Application Act, 1937, nor did the prophet encourage this type of talaq. This talaq emerged only as a custom and a wrong interpretation and does not have Quranic sanctions. He also stated various cases where questions were raised about this form of talaq. He mentioned the case of Shamim Ara v. State of Uttar Pradesh (2002), where the Court gave guidelines for valid talaq. He urged the Court to ban this form of talaq on the ground that it violates Articles 14 and 15 and that if banned, the Dissolution of Muslim Marriage Act, 1939 would apply equally to the entire community irrespective of gender. 

Arguments from the side of the respondent

The respondents were represented by Mr. Kapil Sibal, who argued that the Shariat Act does not codify Muslim personal law but lays down rules of decision in matters of custom or usage to the contrary. He also stated that marriage in Muslim law is a private contract and so cannot be questioned by any legislation. He pointed out the definition of law in the Constitution that does not cover personal laws at all.

He went on to argue that under Article 25 of the Constitution, which empowers the parliament to make laws on social reforms related to secular activities, the court can assess its validity only if the parliament has made a law on the issue. On the question of discrimination faced by women, he said that women can register their marriage if they want, prohibit in Nikahnama the right of the husband to divorce by way of talaq-e-biddat, insist on a high dower or Mehr, and so on.

Judgment of the court 

The five-judge bench of the Supreme Court gave its decision in favour of Shayara Bano and others. It declared the practice of Triple Talaq unconstitutional by a 3:2 majority and directed the legislature to take measures against it in order to stop the abuse against women. The Court in this case emphasised that though this practice of triple talaq is mostly followed by the Hanafi School, it is sinful.

While delivering the judgment, the Court opined that many other Muslim countries in the world have already abolished this practice on the ground that it lacks sanction from the Quran and was neither encouraged nor followed by the Prophet. The Court held the practice to be violative of fundamental rights under Part III  of the Constitution. 

Rule of law

Articles 14 and 15 of the Constitution 

The petitioner in this case claimed that the practice of triple talaq, or instantaneous talaq, is violative of fundamental rights under the constitution. The foremost argument was given on the basis of Article 14 of the Constitution, which provides the right to equality to all its citizens, and Article 15, which prohibits any kind of discrimination among people on the basis of caste, creed, religion, race, gender, etc. The right of instantaneous talaq or triple talaq was only available to husbands who exercised it arbitrarily without any restrictions. On the other hand, women had no right to exercise this option. According to the doctrine of eclipse and severability, if any law infringes upon the fundamental rights of any person enshrined in Part III of the Constitution, it must be struck down. 

Article 25 of the Constitution 

The next argument relied on Article 25 that whether it is an essential practice under Muslim law and whether it must be protected under the Right to Religion. Article 25 guarantees its citizens the right to practice and propagate any religion of their choice. However, this right is not absolute and is subject to a number of restrictions:

  • Public order, 
  • Morality, 
  • Health etc. 

During the discussion on Article 25, the Court observed that this form of talaq lacks the sanctity of the Quran and is nowhere mentioned in the holy book of Muslims, which also means that it is not an essential practice. Moreover, Islamic countries around the world themselves have abolished this form of talaq. The Court stated that “the practice which is considered to be evil in theology cannot be virtuous in the eyes of law and protected under the shelter of legislation.  

Dissenting opinions and observations of different judges

Justice Rohinton Nariman and Uday Lalit had similar views and declared it unconstitutional on the ground that it is manifestly arbitrary in nature. Justice Kurian Joseph on the other hand stressed that this form of talaq lacks the sanction of the Quran. He backed his decision with commentary, which clearly shows his intentions of not creating any communal chaos.  According to him, what is bad in theology cannot be good in the eyes of the law. The opposing judges, however, relied on the fact that talaq is not governed by sharia law but is an intrinsic part of the Muslim religion and thus protected under Article 25 of the Constitution. 

Both Justice Nariman and Lalit opined that triple talaq is a way by which marital bonds can be broken on the whims of the husband and the wife cannot do anything and is thus violative of Article 14. On the question of essential religious practices, they held that essential religious practices under Article 25 of the Constitution are those on which religion is found and which are related to the profession and propagation of religion. 

They relied on the fact that most Islamic countries have done away with this practice, so why not India? This also shows that it is not an essential part of religion and is thus subject to constitutional provisions and fundamental rights. Another point that the Bench emphasised was that though this practice is followed by followers of the Hanafi school, it is sinful. They gave the example of sati pratha in Hinduism, which was regressive and so removed. Sati was also practised by many and had a long standing in history.

Justice Khehar opined that the personal law of Muslims is not enacted by the state and that only state-enacted laws are subject to fundamental rights and can be challenged on the grounds that it violates them. On this point, Justice Nirman considered triple talaq as a “law in force” and said that the word “talaq” mentioned in Section 2 of the Shariat Act 1937 makes it a general authority. It is also mentioned in the Dissolution of Muslim Marriage Act, 1939 and thus, automatically comes under the supervision of state laws and can be challenged in Court on the grounds of fundamental rights. 

Steps taken by the government 

To curb the practice and reduce the instances of triple talaq in the country, the Parliament of India decided to make triple talaq a punishable activity and passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 after the judgment of the Court in 2017. Section 3 under Chapter 2 of the Act declares Talaq-e-Biddat void and illegal. Section 4 describes the punishment that must be awarded to the person who tries to divorce his wife through talaq-e-bidat or triple talaq. The punishment extends to 3 years of imprisonment along with a fine. The wife is also entitled to receive the amount or allowance for herself and her children from her husband as mentioned under Section 5 of the Act. Section 7 makes the pronouncement of triple talaq a cognizable and compoundable offence wherein the husband is not entitled to be released on bail unless the court is satisfied that there are reasonable grounds to do so. 

Analysis of the case

Personal law v. Constitutional law

Personal laws are the laws that govern the personal matters of any religion or community. For example, marriage, family matters, adoption, guardianship, etc. while constitutional law is the law of land and is the supreme law through which every branch of law emerges. Every law in a country must be in consonance with the Constitution of that particular country. In the present case, the most important question faced by the judges was whether some practices of Muslim personal law are in violation of the constitutional law of the land. Triple talaq is one such practice where a husband initiates divorce by making the pronunciation of the word ‘talaq’ three times in a single sentence. The divorce becomes irrevocable as soon as pronounced and the wife has no choice but to accept that the marriage has ended.

Many women have been the victim of such an evil practice in the past as husbands used this option of divorce arbitrarily and unreasonably whenever they wished. Women constantly lived in fear and had to abide by the wishes of their husbands no matter whether those wishes are right or wrong. This form of divorce could not be initiated by a wife as it was the sole right of the husband to do so which infringed the most important fundamental right of equality. The atrocities and sufferings faced by women due to this form of talaq violated their right to life and personal liberty as most of the times, the husband refused to provide maintenance for her and the children. Moreover, based on the findings of the Court, it can be said that triple talaq was neither encouraged by the Prophet nor mentioned in their holy book Quran. This form of talaq was already abolished in most Islamic countries in the world. If it would have been an essential practice of the Muslim religion, it would have been mentioned in their holy book and not been abolished in Islamic countries. This was another factor that the bench had taken into consideration while deciding the constitutionality of triple talaq. 

While dealing with these questions, in this case, Justice Khehar observed the whole case from the point of the Constitution and hence opined that the constitutionality of such laws that are not covered under the definition of law under Article 13 cannot be questioned in the Court and the state has no authority to interfere in the personal laws of any religion. On this, the response by Justice Nariman is very apt. He countered Justice Khehar’s views by stating that “triple talaq” is a part of the “law in force” under Article 13 and that it is given under Section 2 of the Shariat Act, which gives authority to the state to interfere with any such practice related to talaq prevailing in society. This legislation is part of the pre-constitutional era. Hence, the doctrine of eclipse and severability must be applied if necessary. Triple talaq was never recognised in the Quran and Sharia and has only been practised as a custom. This form of talaq is deteriorated and gives pain and discrimination to women. It is also gender-biased in nature.

On the question of equality, the majority relied on the fact that violation cannot only be found by the test of reasonable classification but also on the ground of arbitrariness (E.P. Royappa v. State of Tamil Nadu, 1974). The judges have presented their various dissenting opinions on the various grounds of law and fundamental rights. However, it feels that the Bench did not focus much on gender inequality. The focus shifted to triple talaq being un-Islamic rather than discussing the modern aspect of gender biases and the ills of triple talaq. This is an alarming issue in modern debate.  Neither do they highlight the urge nor the importance of the ‘Uniform Civil Code’ as in the case of Mohd. Ahmed Khan v. Shah Bano (1985). The outcome that the case had in public could have been a major reason.

This case has changed the perspective of how we perceive and interpret personal laws along with the constitutional laws of the land. It seems as if the Court rectified its mistakes made previously in cases with similar questions. For example, the Guwahati High Court in the cases of Jiauddin Ahmed v. Anwara Begum (1981) and Rukia Khatun v. Abdul Khalique Laskar (1981) declared that this form of talaq is legally valid. The Court in this case not only declared the practice of triple talaq as unconstitutional and illegal but also directed the government to ensure the reduction and prevention of divorce on the basis of such practice in future. In lieu of this, the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019 and made the practice of triple talaq a punishable offence. There was a need to make such changes in a situation where Muslim women were deprived of their right to seek a divorce from their husbands. 

Even though the practice of triple talaq has been declared unconstitutional in our country and a punishable offence by virtue of the Act of 2019, it cannot be said that the instances of divorce on the basis of triple talaq have stopped completely. Somewhere in the rural and backward areas where there is little knowledge about such a law existing in our country, it is still practised and is unnoticed because these are not reported by anyone, whether by the victim or someone else. There is a need to educate women about the law in existence and their rights so that any such instance or case faced by women is reported to the required authorities. When all Muslim women will be educated about their rights and laws in force for their protection, we can expect some change in society with respect to their positions and upliftment. They have to be empowered so that they are able to take a stand for themselves firmly. This is only possible when they are fully educated, financially independent and confident. Apart from the laws for their protection, the government must take initiatives for the education of women, especially in rural and backward areas. It must facilitate their financial independence by securing jobs and providing them with opportunities to rise. 

The other two practices mentioned in the case must have been given a second thought, especially the practice of nikah halala. Women are vulnerable to this evil practice wherein, to marry her first husband she has to marry another man, consummate her marriage, and then the present husband would divorce her voluntarily after which she has to observe iddat, and then only she can marry her previous husband. Even the Dissolution of Muslim Marriage Act, of 1939, gives a Muslim woman the right to divorce her husband if he fails to maintain her and fulfil her responsibilities or obligations due to a second marriage. 

Conclusion 

Talaq-e-Biddat or triple talaq is that form in which marriage is broken in just a few seconds and there is no going back and this right lies only with the husband. If he realises his mistake and wants to rectify it, it is the women who have to face the atrocities of nikah halala. The present case is one of the landmark judgments on personal law in the country. It is definitely a great move towards equality and social amendments, especially where they have been needed for a long time. It took many years for the Court to realise that triple talaq is unconstitutional and bad for society. They should now realise the need for a uniform civil court in the country. Triple talaq is just one such practice. There are a lot of such false practices prevailing in the society in the name of religion.

It’s time we keep a check on those practices as well and see whether they are causing harm to society, and if so, then they should be banned. One of the best ways to get rid of these is to have a ‘UNIFORM CIVIL CODE’’. A Uniform Civil Code will not only keep a check on those but uproot some of the evil practices. It will be an advantageous step towards the integrity of the nation. There is a long debate about its establishment, but now it should be implemented rather than just discussed. People have to understand that it will neither create chaos nor is it a step to target any particular religion or community, but it will bring harmony by way of common codified law where every religion, its essential practices, and community will find an equal place. The sooner the authorities and government realise this, the sooner the work will be done and society will become a better place to live in.

Frequently Asked Questions (FAQs)

What do you mean by triple talaq?

Triple talaq, also known as instantaneous talaq or Talaq-e-biddat, is a type of talaq wherein the marriage is dissolved as soon as the husband pronounces the word “talaq” three times in a single sentence. It is considered to be the most unapproved form of talaq as it becomes irrevocable as soon as it is pronounced. 

What are the other forms of talaq in Muslim personal law?

The other forms of talaq are as follows:

  • Talaq-e-Ahsan – This form of talaq is considered to be the best kind of talaq. In this form, the husband has to pronounce the word ‘talaq’ in a single sentence and then abstain from a sexual relationship with his wife. This form of talaq is revocable during the iddat period which may either be implied or expressed. 
  • Talaq-e-Hasan – In this form of talaq, the husband has to pronounce ‘talaq’ in three successive tuhr period (periods between the two menstrual cycles) and abstain from a sexual relationship with his wife as soon as the first pronouncement is done. The revocation time in this talaq is till the third pronouncement after which it becomes irrevocable. 

The husband can also seek a divorce from his wife by:

  • Ila or
  • Zihar or 
  • Talaq by mutual consent
    • Khula or 
    • Mubarat 

Does a Muslim woman have a right to maintenance after divorce?

Yes, a Muslim woman is entitled to maintenance after a divorce from her husband. According to Section 125 of the Criminal Procedure Code, 1973, a husband has to maintain his wife after a divorce until she remarries again. Section 3 and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, also provide for the maintenance of a wife after divorce.  

References 

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