Author: Aanshu Reddy, a student from Symbiosis Law School,Hyderabad.
Abstract:
The landmark case of “Shayara Bano v. Union of India and Others” challenged the constitutionality of the Islamic practice of triple talaq (instant divorce) in India. In this article we will be discussing Shayara Bano’s petition which highlighted the domestic violence and gender inequality she endured, arguing that practices like triple talaq, nikah halala, and polygamy violated her fundamental rights under the Indian Constitution. In 2017, the Supreme Court declared triple talaq unconstitutional, marking a significant step towards gender justice and equality for Muslim women. This case underscores the precedence of constitutional rights over personal laws and ignites a broader debate about the need for uniform code reforms in India. This article provides a brief analysis of the Shayara Bano case to raise awareness about pertinent legal issues and the rights of Muslim women. By examining the case, we aim to inform readers about the implication of the Supreme Court’s decision on triple talaq and its impact on gender justice within the Muslim community. Our goal is to highlight the importance of legal literacy and empower Muslim women to understand and assert their rights, fostering a more equitable society.
Introduction:
The landmark case of “Shayara Bano v. Union of India and Others” scrutinized several controversial practices within Islam, focusing particularly on the practice of triple talaq. This practice allows a Muslim man to divorce his wife instantly by pronouncing “talaq” three times. Shayara Bano’s case sheds light on the domestic violence and gender inequality she faced during her marriage,challenging the constitutionality of such practices in India.
In 2016, Shayara Bano filed a petition seeking to invalidate her husband’s use of talaq-e-bidat (instant divorce) to end their marriage. She argues that this practice, along with others like nikah halala ( where a woman must marry and consummate the marriage with another man before she can remarry her first husband) and polygamy, violated her fundamental rights under the Indian Constitution. Bano contended that these practices were discriminatory and infringed upon the rights guaranteed to Muslim women under Articles 14 (right to equality), 15 (prohibition of discrimination), 21 (right to life and personal liberty), and 25 (freedom of religion).
There are two types of talaq
- Talaq-ul-Sunnat: A revocable form of divorce that is considered more aligned with Islamic teachings.
- Talaq-ul-Biddat: An irrevocable and instant form of divorce, which was the focus on Bano’s case.
Shayara Bano’s husband , Rizwan Ahmed, divorced her using talaq-e-bidat after 15 years of marriage. Following this, Bano approached the Supreme Court, arguing that such practices were unconstitutional. The All-India Muslim Personal Law board (AIMPLB) defended these practices as essential religious customs protected under Article 25 of the Indian Constitution.
Shayara Bano had been married for fifteen years before her husband divorced her using triple talaq in 2016. She then filed a writ petition to the Supreme Court, challenging the constitutionality of triple talaq, polygamy and nikah halala. The petition was supported by women’s rights organizations like Bebak Collective and Bhartiya muslim Mahila Andolan (BMMA), which argued that these practices violated the fundamental rights of Muslim women.
In response, the Supreme Court formed a five-judge constitution bench to hear the case. On August 22,2017, the bench declared the practice of triple talaq unconstitutional by a majority decision of 3:2. This judgment was a significant step towards ensuring gender justice and equality for Muslim women in India. Subsequently, a law was enacted, making instant triple talaq a criminal offense.
Shayara Bano had been married for fifteen years before her husband divorced her using triple talaq in 2016. She then filed a writ petition to the Supreme Court, challenging the constitutionality of triple talaq, polygamy and nikah halala. The petition was supported by women’s rights organizations like Bebak Collective and Bhartiya muslim Mahila Andolan (BMMA), which argued that these practices violated the fundamental rights of Muslim women.
Issues raised in the Court:
- Were Ms. Bano’s fundamental rights being infringed?
- Was marriage given higher priority over equality in this case?
- What are the consequences of declaring triple talaq illegal?
- What is the current status of triple talaq and nikah halala?
The main objective of the judgment in the Shayara Bano case has far-reaching implications for the interpretation of fundamental rights in relation to personal laws in India. It highlights the importance of gender justice and equality, recognizing that certain religious practices cannot override constitutional rights. The Supreme Court’s decision made it a criminal offense for Muslim men to practice instant divorce, with penalties including up to three years in prison. This ruling aligns with the court’s commitment to uphold the rights of muslim women, ensuring they are not subjected to arbitrary and discriminatory practices.
Analysis of the case:
The decision in the Shayara Bano case marked a significant moment in Indian judicial history. It underscored that constitutional rights take precedence over personal laws when they are in conflict. The ruling emphasized that practices like triple talaq, which are arbitrary and discriminatory, cannot be protected under the guise of religious freedom.
The case also highlighted the importance of the right of equality (Article 14) and the prohibition of discrimination (Article 15). Although the court focused primarily on the un-islamic nature of the triple talaq, it did not delve deeply into the gender imbalance inherent in the practice. The judgment, therefore, sparked a debate about the need for a uniform civil code and the balance between minority rights and gender justice.
According to the case of A.S. Parveen Akhtar v. Union of India, the act of Triple Talaq among Muslims is restricted by the Holy Quran and is thought of as corrupt.
In Saleem Basha vs. Mumtaz Begam, it was held that the genuine law of talaq, as given by the Holy Quran, is that talaq should be for a legitimate explanation and should be trailed by endeavors at compromise by two family members, one for every one of the gatherings.
Though the majority view argument came to release Muslim women from the shackles of grievous injustice caused by their Muslim husbands through triple talaq, the minority opinion approach to religious freedom is exceedingly problematic, defective, and plagued by several flaws. Because the scope of religious freedom granted by Article 25 is confined to religion’s core and integral practices, not every religious practice is deemed absolute, unchanging, and inviolable by the Constitution. “The status of Muslim women under so-called Customary Law is simply disgraceful,” it was said in the case of Masroor Ahmed v. State. As a result, all Muslim women’s organizations have criticized the Customary Law for infringing on their rights.
The ban on triple talaq, as well as its eventual repeal, have aroused heated controversy. The All-India Muslim Personal Board and Muslim women have opposing viewpoints on the same issue. “While the former attempts to maintain the status quo, the latter seeks to provide equity and justice to those who are or may become victims.” Ninety-two percent of Muslim women want the oral talaq to be abolished, and women are divorcing via Skype, mail, and even SMS. After their husbands divorce them on the spot, the dependent spouses are made defenseless when they are evicted from their homes overnight, leaving them penniless and unable to care for their children. Citizens have been more conscious of their rights in recent years. Smt.Sumaila vs. Aaqil Jamil and Ors , in which the husband divorced his wife by triple pronouncement, the Allahabad High Court ruled that it was wrongful and in violation of Article 14[15], which states: “The State shall not deny to any person within the territory of India equality before the law or equal protection of the laws.”
This case study provides insights into how women in patriarchal societies can stand up against discriminatory practices. It serves as an inspiration for future generations, encouraging women to assert their rights and challenge oppressive traditions.
Legal provisions:
The case relied on several constitutional provisions:
- Article 14: Equality before the law.
- Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
- Article 21: Protection of life and personal liberty.
- Article 25: Freedom of conscience and free profession, practice, and propagation of religion.
These provisions collectively reinforced the argument that triple talaq and similar practices violated the fundamental rights of Muslim women.
Frequently Asked Questions:
Q.1.) What is triple talaq?
1.A.) Triple Talaq is a form of Islamic divorce where a man can instantly divorce his wife by saying “talaq” three times.
Q.2.) Is triple talaq considered illegal in India now?
2.A.) The Supreme Court declared the practice of instant triple talaq (talaq-e-bidat) to be considered unconstitutional and invalid.
Q.3.) Why was triple talaq challenged in court?
3.A.) It was challenged as it violated women’s right to equality and dignity. Shayara Bano was deeply aggrieved by the law which constituted triple talaq as valid after which she challenged the Supreme Court on the grounds of right to equality and dignity as a woman.
Q.4.) What is the punishment for practicing triple talaq after the ban?
4.A.) Under the Muslim Women( Protection of Rights on Marriage) Act,2019, practicing instant triple talaq can result in up to three years of imprisonment and fine.
Q.5.) What is the procedure to be followed by a Muslim man for divorce?
5.A.) They must follow Islamic procedures which may involve a waiting period and an attempt for reconciliation
Q.6.) How can Muslim women seek help if they face triple talaq?
6.A.) They can file a complaint in their local police station or they can approach any women’s right associations for legal assistance regarding the matter.
Conclusion
The Supreme Court’s ruling in the Shayara Bano case was a pivotal moment in the fight for gender justice in India. By declaring triple talaq unconstitutional, the court affirmed that personal laws must align with the fundamental rights enshrined in the Constitution. This decision not only provided legal recourse to Shayara Bano and other victims of triple talaq but also set a precedent for challenging other discriminatory practices within personal laws. The case underscores the importance of upholding unconstitutional values of equality and justice in a diverse and democratic society like India. Moving forward, continued legal and social efforts are essential to ensure that all discriminatory practices are eradicated, and that women of all communities are fully aware of and able to exercise their rights. This case serves as a reminder of the ongoing need for vigilance and advocacy in the pursuit of true gender equality.
References
- https://www.scobserver.in/cases/shayara-bano-union-india-triple-talaq-case-background/
- https://www.thehindu.com/news/national/who-is-shayara-bano-the-triple-talaq-crusader/article61477439.ece
- https://lawbhoomi.com/difference-between-talaq-ul-biddat-and-talaq-ul-sunnat/#:~:text=Talaq%2Dul%2DBiddat%3A%20Involves,the%20waiting%20period%20(Iddah).
- https://static.pib.gov.in/WriteReadData/specificdocs/documents/2021/sep/doc202192011.pdf
- https://kanoonihelp.com/