Author: Oommen Tharian, a student at Symbiosis Law School , Pune
To The Point:
The Shayara Bano v Union Of India is a revolutionary judgement by the Supreme Court of India in 2017 , that declared the practice of Triple Talaq ( Talaq-e-Bid’ah ) unconstitutional. Triple Talaq, is a form of divorced practiced by Muslim men, which allowed them to divorce their wife by uttering the word “talaq” three times in succession, very often without a notice or consent. The judgement held that the practice violated the fundamental rights of Muslim women under Article 14 ( Right to Equality ) and Article 21 ( Right to Life ) of the Indian Constitution. In the broader discussions concerning gender justice, personal laws, and the relationship between religion and constitutional rights in India, this court case created a historic turning point.
Use of Legal Jargon:
The challenge to Triple Talaq was grounded in constitutional law, specially focusing on the violation of fundamental rights under Fundamental Rights under Article 14 ( Right to Equality ) and under Article 21 ( Right to Life and Personal Liberty ) of the Indian Constitution. The petitioners argued that the practice of Triple Talaq was arbitrary, discriminatory and went against public policies and interest of natural justices and gender equality. After considering the matter, the Supreme Court concluded that Triple Talaq was incompatible with the principles outlined in the Constitution and failed the reasonableness test. As a result, the practice was ruled to be unlawful and to have violated gender justice principles. The ruling raised concerns about how to strike a balance between the fundamental rights protected by the Constitution and personal laws, which are sometimes linked to religious convictions, especially when it comes to equality and gender.
The Proof:
This case was initiated by a Muslim woman who was divorced by her husband ( Rizwan Ahmed ) through the practice of Triple Talaq. On 10th October 2015 Rizwan Ahmad divorced his wife through the practice of talaq-e-biddat or triple talaq or instant talaq (in the presence of two witnesses he said that I gave ‘talak, talak, talak’). The petitioner claimed that the procedures were not covered by Articles 25(1), 26(b), and 29 of the Constitution and that this kind of divorce (talaq) violated fundamental rights. Bano challenged this method of divorce, arguing that it was unconstitutional, as it violated her fundamental rights under Article 14 and Article 21. The case was further heard by a five-judge bench of the Supreme Court, which discussed in great detail whether Triple Talaq was protected by the Indian Constitution’s guarantees on freedom of religion and whether it was a part of Islamic personal law.
In its judgment, the Supreme Court held that Triple Talaq was unconstitutional by a 3:2 majority. The Court reasoned that the practice violated the Constitution’s guarantees of equality and dignity, was arbitrary, and lacked any kind of reasoning. In addition, the Court determined that the practice of instant Triple Talaq was not a necessary component of Islam and could, thus, be regulated by the state in order to protect fundamental rights.
The Indian Government in its defence, contended that the Triple Talaq was a valid part of Islamic Personal Law, and as such and was protected under Article 25 ( Freedom of Religion ) of the Indian Constitution. The Government had further argued that the practice has been existence for centuries and was a very valid part of Islamic tradition. However , court found that , however freedom of religion is guaranteed in the constitution, it does not tolerate the violation of fundamental rights especially of right to equality and right to life and dignity of individuals
The judgement emphasized the importance of gender equality and human dignity as foundation principles of the Constitution. By permitting unilateral divorce without due process, the Court noted that Triple Talaq was a practice that led to gender inequity by leaving women defenseless, without financial support, and without a fair opportunity to challenge the divorce.
Case Laws:
1- Muslim Women (Protection of Rights on Marriage) Act, 2019
Following the Supreme Court’s ruling in Shayara Bano, the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized the practice of Triple Talaq. The Act made it a cognizable offense punishable by up to three years in prison and a fine. By eliminating the irrational practice of Triple Talaq and guaranteeing that their rights were respected, this law sought to give Muslim women legal protection.
2- Shah Bano v Mohammad Ahmad Khan (1985)
The question is whether a Muslim woman is entitled to maintenance under Section 125 of the CrPC even though Muslim personal law did not allow for such maintenance following a divorce.
Held: Shah Bano, a Muslim lady who had been divorced by her husband, won her case at the Supreme Court, which decided that she was entitled to support under Section 125 of the CrPC. The Court came to the conclusion that Section 125 was a secular clause intended to safeguard women’s rights and prevent them from becoming impoverished following a divorce. The Court further stressed that secular laws such as Section 125 of the CrPC, which provides maintenance to women after divorce, could not supersede personal laws, including Muslim law. This judgment was significant because it asserted the primacy of statutory law over personal laws in matters of gender equality and justice.
Conclusion:
The Shayara Bano v Union of India case represents a very important moment in Indian legal history, making a very decisive shift towards gender justice and equality. The ruling reaffirmed that religious customs, regardless of their historical origins, cannot take priority over the fundamental rights protected by the Indian Constitution. The practice of Triple Talaq, which subjected Muslim women to arbitrary and unilateral divorces, was ruled unconstitutional, which was a triumph for women’s rights.
The courts ruling also reaffirmed the relationship between religious freedom and fundamental rights. The Court emphasized that while freedom of religion is guaranteed by Article 25 of the Constitution, this article cannot safeguard religious activities that infringe upon fundamental rights, especially gender equality. The Court decided that Triple Talaq could not be protected by religious freedom since it was not a fundamental aspect of Islam.
FAQ
Q1- What is Triple Talaq?
A1- Triple Talaq is a form of divorce in Islam, practiced in Muslim communities , where a man can divorce his wife by saying “Talaq” three times in succession, or even through electronic means. This does not require mutual consent or judicial review
Q2- Why was Triple Talaq declared to be unconstitutional?
A2- The Supreme Court ruled Triple Talaq to be unconstitutional as it violates the fundamental rights of Muslim women ( Article 14 ) Right to Equality and ( Article 21 ) Right to Personal Life and Liberty of the Indian Constitution
Q3- What did the Court say about the role of religion?
A3- Although the Court recognized the right to freedom of religion under Article 25, it made it clear that the Constitution does not guarantee religious practices that infringe upon fundamental rights, including the right to equality and dignity. According to the Court, Triple Talaq is not a fundamental aspect of Islam.