Shayara Bano v.

UOI (2017) 9 SCC 1

 BACKGROUND OF “TRIPLE TALAQ”.

This practice came into existence by innovation not by traditions. This is also called as “Triple
Talaq”. The Prophet forbade the practise of triple-talaq, which is not mentioned in the holy
Quran. Once the Prophet passed away, the Arabs invaded Egypt, Persia, Syria, and other
Middle Eastern nations discovered that the ladies there were more enticing than those in Arabia.
Women from the conquered nations stipulated that if Arabian men wanted to have relationship
with them, they should immediately divorce their wives. The men of Arabia enthusiastically
consented to this. Since according to Islam, talaq cannot take place win a single process and as
inconsistent with the Quran and Hadis, this allowed the men of Arabia to keep their wives while
engaging in sexual relations with other women because the talaq would become void if revoked
at any time.

Upon witnessing the egregious exploitation of religious principles by such men to quench their
unjust lust, the second Caliph Umar ordered quick triple talaq to be irrevocable. To put an end
to the unethical practises that were then common, the rulers approved the triple talaq practise.
The Hanafi school gave this practise a theological sanctity and portrayed it as a vital Islamic
practise, despite the fact that it was first implemented as a societal policy to safeguard the
interests of women.

 Facts of the case

Shayara Bano's marriage with Rizwan Ahmed was for 15 years. She was subjected to domestic
violence and dowry harassment.

In 2016, she was unilaterally divorced through instantaneous triple talaq.

A writ petition was then filed by her before the Supreme Court.

The petition stated a declaration that "the practices of Instant Triple Talaq, Polygamy and Nikah
Halala in Muslim personal law were illegal, unconstitutional, and in violation of several
fundamental rights i.e., Articles 14 , 15, 21 and 25 of the Indian Constitution."

The Union of India, women's rights organizations like the Bebaak Collective and the Bhartiya
Muslim Mahila Andolan (BMMA) also supported Ms. Bano's plea that these practices should
be held unconstitutional. They urged the court to declare that personal law was subject to the
Fundamental Rights.

The All-India Muslim Personal Law Board (AIMPLB) has argued that uncodified Muslim
personal law is not subject to judicial review and the Court does not have jurisdiction to
entertain a constitutional challenge to Muslim personal law as these are essential practices of
the Islamic religion and are protected under Article 25 of the Constitution.

 Issues -

Supreme Court then framed two main issues in the case after considering all the facts –

1. Whether triple talaq is an essential religious practice is Islam religion

2. Whether the practice of triple talaq is violation of any fundamental rights guaranteed
under constitution of India.

 Arguments in the Case:

Petitioner’s Argument:
Shayara Bano’s advocate Mr. Amith Chadha Indira Jai Singh argued that -
1.triple talaq is not a form of divorce recognized by The Muslim Personal Law (Shariat)
Application Act, 1937.
2. Several High Courts and Supreme Court have criticized the practice of triple talaq as
it does not have any Quranic sanction.
3. “the practices of triple talaq is not an essential practices of Islam as it is evident
from legislations in other Islamic countries, that have prohibited such practices.”
4. talaq -al – ahsan and talaqal hasan, are approved and recognized by the Quran and
Hadith while talaq-e-bidat, is neither recognized nor approved by the Quran nor by the
Hadith.
5. “personal laws – whether codified or un-codified – regardless of the community, are
subject to Article 13 of the Indian Constitution and therefore void to the extent that they
violate fundamental rights.” The general proposition that “any divorce which is
unilateral and without judicial oversight violates Articles 14, 15 and 21 of the Indian
Constitution. Also, the general Islamic concept of marriage among Muslims is
admittedly a contract it cannot be dissolved unilaterally.
6. “the AIMPLB is a private body that isn’t representative of the views of all Hanafi
Muslims.
 Thus, he urged the court to “strike down the practice of triple talaq as it allows an un-
codified power to Muslim men to divorce, violating Articles 14 and 15 of the
Constitution.”

 Respondent’s Arguments
Mr. Kapil Sibal, Sr. Advocate, representing the All India Muslim Personal Law Board
(AIMPL) argued –
1. the core underlying issue before the court is that of patriarchy which pervades every
religion and not the issue of triple talaq
2. the definition of law under Article 13 does not include personal laws. Explicit
mention of personal laws in the Concurrent List (List III of the Seventh Schedule) and
its absence in Article 13 demonstrates the Constitution makers’ intention to exclude
personal laws.
3. while the Quran is silent on triple talaq, there is nothing in it that prohibits triple
talaq. Moreover, petitioners’ view that the Quran alone is the source for understanding
talaq is incorrect as the Sharia is based on the Quran, Hadith, and interpretations of
scholars.
4. Muslim women are not discriminated against by the triple talaq rule and may even
benefit from immediate relief from bad marriages. He proposed four options for a
Muslim woman to protect herself from a discriminatory use of the triple talaq: first, she
may register the marriage under the Special Marriage Act, 1954; second, she can insert
conditions into the Nikahnama to prohibit her husband from exercising a triple talaq;
thirdly, she delegates the right to talaq to herself and finally, insist on the payment of a
high Mehr amount to deter the exercise of triple talaq.
5. the Hanafi school is a religious denomination and that every denomination’s right to
practice religion is protected under Article 26 of the Constitution.
6. the question of assessing the constitutional validity of triple talaq does not arise as
divorce is between two private individuals and there is no state action involved.
Moreover, since marriage is a private contract under Islamic Law, no State legislation
can change it.
Certain verses from the Quran were cited to argue that marriage and divorce have
sources in religious scriptures and thus are essential matters of religion protected under
Articles 25 and 26 of the Constitution.
  Judgement –
The Supreme Court gave its judgment on August 22, 2017 in a 3:2 majority, holding
the practice of Triple Talaq unconstitutional. The 5-judge bench that heard the
controversial triple talaq case in 2017 was made up of different faith members. The five
judges were from five different communities i.e., Chief Justice JS Khehar (a Sikh),
Justices Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu), and
Abdul Nazeer (a Muslim).

1. CJI Jagadish khehar and Abdul Nazeer (Dissenting Minority Openion) - observed that
the practice of triple talaq is a part of Muslim personal law and is followed by an
overwhelming majority of Muslim population. Article 25 of Indian constitution provides to
every individual “Right to religion” and therefore this practice is protected by this article. So
judiciary cannot interfere in this matter, parliament has to decide whether triple talaq is valid
or void by making a law. This practice was not violative of any of these exceptions under Art.
25 (1) of the constitution as Muslim Personal law is not based on any state legislative action.

J. Rohinton Nariman and J.U.U. Lalit observed that all pre constitutional and post
constitutional laws must be consistent with fundamental rights guaranteed by the constitution.
According to “Article 13 of the Indian constitution”, personal laws cannot be challenged. This
practice was not challenged under “Article 13”, this was challenged under “Article 14,15,21
and 25”. The supreme court of India has the power to declare some provision as
unconstitutional, if it violates fundamental rights. Instant triple talaq is arbitrary in nature and
therefore violates fundamental rights of women under “Article 14, of Indian constitution”.

J. Kurian Joseph observed that triple talaq is un-Islamic practice, so it is not an essential
practice of Islam.

So, by a ratio 3:2, it was decided that the practice of “Triple talaq” is unconstitutional.

LEGAL DEVELOPMENT AFTER SHAYARA BANO CASE

August 2017: Supreme court of India declared Triple Talaq as illegal

2017: There are repeated instances of violations, so there is a need to make law against Triple
talaq.

December 2017:Lok Sabha passed The Muslim Women (Protection of Rights on Marriage
Bill)2017, but got lapsed in Rajya Sabha.
September 2018: Cabinet passed an ordinance in which triple talaq is made a punishable
offence and prescribed imprisonment for three years

July 2019:This bill got passed by both Lok Sabha and Rajya Sabha and got assent by the
president

 MAIN ELEMENTS OF MUSLIM WOMEN (PROTECTION OF RIGHTS ON

MARRIAGE) ACT,2019

1.Offence and penalty

The Actt declares triple talaq, whether there in written or in electronic form to be void and
illegal

The Act makes triple talaq a cognizable offence with imprisonment upto three years and fine.

2. Who can file a complaint?

Only the wife (married woman) against whom talaq has been declared or any person related to
her by blood or marriage can file a case on her behalf.

3. Bail

Bail may be granted by the magistrate, but only after hearing the woman and then, if the
magistrate thinks that there are reasonable grounds for granting the bail.

Offence can be compounded by the magistrate on the request of the woman.

4. Subsistance Allowance and custody

The woman is entitled to seek subsistence allowance for herself and her dependent children,
also the woman is entitled to seek custody of minor children.

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