By- Gargi Bhattacharya, LLB
Faculty of Law, DU
Table of Contents
In Shayara Bano v. Union of India and Ors. (2016), the Supreme Court of India abrogated the practice of “talaq-e biddat”, which permitted the Muslim males to divorce their wives instantaneously and irreversibly. In other words, this landmark judgment was pronounced in order to declare unconstitutional the practice of “Triple Talaq” as it violates the Fundamental Rights of Muslim women. It is one of the leading judgments like Shah Bano Begum Case (1985), wherein the rights of Muslim women in India are protected. “Talaq-e-biddat”/ “Triple Talaq” is a mode of divorce practiced by Muslim husband to bring about Dissolution of Marriage/Nikah. “Talaq” means Divorce and “Biddat” means Sinful. Therefore “Talaq-e-biddat” is a sinful or disapproved mode of divorce. This form of divorce/talaq is also known as “Talaq-ul-Bain”. This irrevocable mode of Talaq is not permitted under the Shia Law, whereas, this practice is recognized only under the Sunni Law. In this mode of Divorce, three consecutive pronouncements of Talaq are made in a single ‘Tuhr’, i.e., a period of purity, either in a single sentence or in separate sentences. For instance- in one sentence or in one declaration saying: “I divorce thee thrice”/ “I pronounce my first, second and third Talaq”/ “I divorce thee irrevocably”/ “I divorce thee in Bain”; Or in several sentences as: “Talaq, Talaq, Talaq” or “I divorce thee, I divorce thee, I divorce thee”. An anomalous feature of this divorce is that the talaq becomes enforceable as soon as the word is pronounced thrice and there is no possibility of reconciliation between the parties. Prophet Muhammad never approved this irrevocable form of talaq as there was no opportunity for reconciliation. Hence, this form of talaq was not in practice
during his lifetime. According to Syed Ameer Ali, this peculiar practice of talaq was inducted by the Omayyad Monarchs because they found the inhibitions in the Prophet’s principle of Talaq as unfavourable or inconvenient and endeavoured to find a way out to abscond from the strictness of law. Since, then
the practice of “Triple Talaq” had become customary among the Sunni Muslims.
Shayara Bano got married with Rizwan Ahmed on April 11, 2001 as per Shariat Law in the city of Allahabad (Now, Prayagraj). They were married for 15 years and their wedlock resulted in two children. On October 10, 2015, Rizwan Ahmed divorced his wife, Shayara Bano, through instantaneous Triple Talaq/Talaq-e-biddat. Consequently, she filed a writ petition in the Supreme Court of India seeking for appropriate directions to declare 3 practices- “Talaq- e-biddat”/ “Instant Triple Talaq”, “Nikah Halala” and “Polygamy” unconstitutional as they violated Articles 14, 15, 21 and 25 of the Constitution of India.
On February 16, 2017, the Supreme Court bench asked Shayara Bano, the Union of India, the All India Muslim Personal Law Board (AIMPLB), and various Women’ Rights bodies to provide written submissions before the Court of Law on the issues of- Talaq-e-biddat/ Instant Triple Talaq, Nikah-Halala and
“Talaq-e-biddat” as discussed earlier is a practice under Muslim Law that gives a Muslim husband the right to divorce his wife irrevocably by pronouncing “Talaq” three times in one sitting with the consent of his counterpart and in this practice of divorce there is no scope of arbitration or reconciliation. “Nikah Halala” is a customary practice under the Muslim Law wherein a divorced Muslim woman who wishes to remarry her ex-husband is required to marry and obtain a divorce from her second husband in order to get back to her fir husband. And “Polygamy” is a practice in which a Muslim man can have more than one wife. In this case, Shayara Bano was the petitioner and Rizwan Ahmed along with the Union of India, Ministry of Law and Justice, Ministry of Women and Child Development, Ministry of Minority Affairs, National Commission for Women, and All India Muslim Personal Law Board (AIMPLB) were said to be the respondents.
- Whether “Instant Triple Talaq”/ “Talaq-e-biddat” is an Essential Religious Practice of Islam?
- Whether the practice of “Instant Triple Talaq” is violative of the Fundamental Rights that are guaranteed under the Constitution of India?
- Whether the practice of “Triple Talaq” has any legal validation/sanction?
- Whether ‘religion’ can be the basis of repudiation of equal status and dignity of Muslim women in a secular democracy.
The petitioner, Shayara Bano submitted that the Instant Triple Talaq pronounced by her husband, Rizwan Ahmed, was invalid and unconstitutional as it was not an essential practice under The Muslim Personal Law (Shariat). She contended that the instantaneous divorce or talaq cannot be considered as ‘rule of decision’ under the Shariat Application Act. According to the petitioner, there is no reference of the practice of “Talaq-e-biddat” in the Holy book of the Muslims, Quran and this mode of divorce is only permitted by a few Sunni schools. It was put forward that “Instant Triple Talaq” could be uttered by the Muslim husband in the absence of his wife even without her prior knowledge or consent. This vests an arbitrary power in the hands of the husband which is in
violation of Article 14 of the Constitution of India. She also submitted that this practice of “Talaq-e-biddat” contravenes the Fundamental Rights assured to the citizens of India under Articles 14, 15, and 21 of the Constitution and this practice cannot be preserved too under Articles 25(1), 26(b) and 29 of the Constitution that grant rights to religious denominations. It was further submitted by the petitioner that the practice of “Talaq-e-biddat” is condemned internationally and a number of prominent Islamic countries have rejected this practice of divorce. Hence, it cannot be conceived as to be sacrosanct to the tenets of the Muslim faith. Therefore, Shayara Bano sought in her petition that such arbitrary, unilateral, abrupt and irrevocable practice of divorce which ceases the matrimonial relationship purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 be officially declared unconstitutional. The Union of India and the Women’ Rights organisations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) favoured and supported the plea of Shayara Bano that the practices of “Talaq-e-Biddat”, “Nikah Halala” and “Polygamy” are unconstitutional.
On the other hand, the respondent, Rizwan Ahmad disclosed that his wife/petitioner Shayara Bano left her in-laws’ home to live with her parents at their residence. She turned down her husband’s request to accompany him and declined to return to the matrimonial home. Shayara Bano’s father informed him, that his daughter, i.e., Shayara Bano was not eager to live with the respondent, i.e., Rizwan Ahmed. The respondent contended that as his wife was not prepared for reconciliation or restoration of their matrimonial ties, thereby he divorced her by serving a ‘talaq-nama’. He also stated that he had pronounced Instant Triple Talaq in accordance with the prevalent, legally accepted and valid mode of Dissolution of Muslim Marriages. Furthermore, he
contended that the writ petition filed by the petitioner before the Supreme Court of India was not maintainable as the issues put up by the petitioner was not reasonable and unjustifiable under Article 32 of the Constitution.
It was also raised that interpretation of the Muslim Personal Law (Shariat) was beyond the jurisdiction of the Court of Law.
The Union of India argued that the Right to freedom of religion was subservient to the Fundamental Rights enshrined in the Constitution. The provisions under Article 25(1) of the Constitution that provide right to practice, preach and propagate religion are subjected to Articles 14 and 15 of the Constitution. There is a fine difference between religious practices and religions in itself and it can consequently be stated that the former is not protected under Article 25 of the Constitution. It is further contended that the right to faith and belief is
unequivocally guaranteed under the Constitution. On the contrary, every practice of faith and belief could not be considered as an integral tenet of religion.
The All India Muslim Personal Law Board contended that the 3 practices- “Talaq-e-biddat”, “Nikah Halala”, and “Polygamy” are an intrinsic part of the Muslim religion and the Apex Court of India should not interfere in the
religious matters under the Muslim Personal Law as such matters are outside the jurisdiction of Supreme Court. The AIMPLB further submitted that the uncodified Muslim Personal Law is not subjected to Judicial Review under the Constitution and these are essential religious practices under the Islam faith and protected under Article 25 of the Constitution. Also, the expression ‘custom and usage’ under Article 13 of the Constitution does not comprise of the faith of religious sects or denominations that are ingrained in their ‘Personal Law’.
After accepting Shayara Bano’s petition, the Apex Court of India constituted a 5-Judge Constitutional Bench on March 30, 2017. The then Hon’ble Chief Justice of India, Jagdish Singh Khehar; Justice Abdul Nazeer; Justice Kurian Joseph; Justice Rohinton Nariman; and Justice U.U. Lalit formed the 5-Judge Constitutional Bench.
On August 22, 2017, the Supreme Court Bench pronounced its judgment with a 3:2 majority declaring that the practice of “Instant Triple Talaq”/ “Talaq-e- biddat” was unconstitutional.
ANALYSIS (Ratio of the Judgment):
Majority Opinion (Justices Rohinton F. Nariman, Kurian Joseph & U.U. Lalit)-
Justice R. Nariman opined that the practice of Instant Triple Talaq is not protected under Article 25 of the Constitution as it is not an essential religious practice of Islam faith. Although it is prevalent under the Hanafi School, the practice of Triple Talaq is still disapproved and considered sinful and is against the basic tenets of Holy Quran. Therefore, it is contrary to Shariat Law. He referred to the decision in Shamim Ara Case (2002), wherein it was held that
the practice of triple talaq is against both law and theology. Merely because the practice of triple talaq has been followed by a large mass of people, that does not make the practice valid and legally acceptable. The practice of Triple Talaq is violative of the fundamental right contained under Article 14 of the
Constitution because it is against the rights of women as they have no say and their opinion stands rejected during the pronouncement of divorce by the Muslim men unlike in other religions. The religious practices under any
Personal law should conform to norms, which are rational, informed with reason and guided by public interest, etc.
Applying the test of manifest arbitrariness to the present case, it has become evident that “Talaq-e-biddat” is a
form of talaq which is considered to be something innovative, that it is not in the Sunna as being an irregular or heretical form of talaq. As “Instant Triple Talaq”/ “Talaq-e-biddat” is instant and irrevocable, therefore reconciliation between the husband and the wife brought about by two arbiters from their families to save the matrimonial relationship between the spouses cannot ever take place. This form of Talaq is manifestly arbitrary as the matrimonial tie can be severed capriciously and whimsically by a Muslim husband without any attempt at reconciliation with his counterpart so as to save it from being dissolved. The majority bench of the Supreme Court of India observed that the Muslim Personal Law (Shariat) Application Act, 1937 was made by the legislature before the Constitution came into force and all forms of Talaq including the Triple Talaq accepted and enforced by the Muslim Personal Law are likewise recognised and enforced by the Shariat Act, 1937. Therefore, the Act would fall within the expression ‘laws in force’ in Article 13(3)(b) of Constitution and would be struck by Article 13(1) if it is found to be inconsistent with the provisions of Part III of the Constitution that deals with Fundamental Rights. As the Shariat Act, 1937 seeks to recognize and enforce the practice of Triple Talaq and it falls within the expression ‘laws in force’ under Article 13 of the Constitution, therefore it must be struck down as being void
It was put forward by J. Rohinton Nariman and J. U.U. Lalit that the laws enacted before and after the commencement of the Constitution of India should be consistent with the Fundamental Rights enshrined under Part III of the Constitution of India. The Personal Laws cannot be challenged through Article13 of the Constitution. The present case of Instant Triple Talaq was not challenged by Article 13 but instead challenged by Article 14, 15, 21 & 25 of the Constitution. If any provision in an Act is arbitrary or it violates the
Fundamental Rights of the Constitution, then the Supreme Court of India has the power to declare such provision or practice as unconstitutional. The practice of Instant Triple Talaq is arbitrary as it violates the Fundamental Rights of the Muslim women, therefore the Supreme Court has the power to declare the
practice of Instant Triple Talaq as unconstitutional with the help of Article 14.
Justice Kurian Joseph observed that the practice of Instant Triple Talaq is Un- Islamic because this mode of divorce does not have the scope of arbitration and reconciliation between the spouses unlike the other forms of Talaq recognised by the Muslim Personal Law. On the aforementioned basis, he opined that Instant Triple Talaq is not an essential religious practice under Muslim Law and hence, there cannot be any Constitutional protection to such a practice.
Minority Opinion (Chief Justice J.S. Khehar and Justice S.A. Abdul Nazeer)-
They opined that the practice of Instant Triple Talaq is a part of the Muslim Personal Law. Also, as per Article 25 of the Constitution of India, all citizens of India are provided with the Right to Religion. Further the practices under the Muslim Personal Law are also protected by this Article of the Constitution, therefore the Supreme Court of India cannot transgress its jurisdiction and interfere into such religious practices. The Chief Justice Khehar however wanted the practice to be stayed for six months and asked the Parliament to make appropriate legislation regarding this issue as it was beyond the ambit of Judiciary to interfere in such matter.
Hence, by majority the practice of Instant Triple Talaq was declared ‘Illegal’ and the Supreme Court of India asked the Government of India to make appropriate law in this matter.
The landmark judgment of Triple Talaq provides a bulwark against discrimination based on gender under the veil of essential religious practice. This watershed judgment abandoned the age-old regressive religious practice
and played a pivotal role in the advancement of essential constitutional values of secularism, justness, liberty, equality and dignity. In accordance with this judgment, The Government of India enacted the
“Muslim Women (Protection of Rights on Marriage) Act, 2019”, which declares Instant Triple Talaq in any form- spoken, in written or in electronic forms to be void (in law) and illegal. This Act makes Triple Talaq a cognizable offence with imprisonment up to 3 years for the husband along with a fine. It also prescribes
that a married woman against whom triple talaq is pronounced shall be entitled to seek subsistence allowance for herself and her dependent children from her husband, as may be determined by the Magistrate.