Author- Farhin Asfar, Durgapur Institute of Legal Studies
To the Point
The Supreme Court’s 2017 ruling in Shayara Bano v. Union of India was a watershed moment in Indian constitutional history. By invalidating the practice of talaq-e-biddat (instant triple talaq), the Court reaffirmed the supremacy of constitutional morality over discriminatory personal laws. The judgment, delivered by a 3:2 majority, underscored that personal laws, though protected under Articles 25 and 26, must not contravene fundamental rights, particularly Articles 14, 15, and 21. The decision was not merely about marital dissolution but about the dignity, equality, and agency of Muslim women in a democratic society.
Use of Legal Jargon
Constitutional Morality: The guiding principle that laws and practices must conform to constitutional ideals of liberty, equality, and justice, even when in conflict with social or religious norms.
Arbitrariness Doctrine: Established in E.P. Royappa v. State of Tamil Nadu (1974) and later expanded in Maneka Gandhi v. Union of India (1978), it holds that arbitrary state action or law is inherently violative of Article 14.
Manifest Arbitrariness Test: Propounded in Shayara Bano, it suggests that any legislation or practice lacking reasonableness, fairness, or rationality can be struck down under Article 14.
Doctrine of Essential Religious Practices: Judicially developed in Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004), it distinguishes between core religious tenets protected under Article 25 and peripheral practices subject to constitutional scrutiny.
Judicial Review of Personal Laws: The Court’s power to subject personal law practices to constitutional benchmarks, balancing freedom of religion with equality rights.
The Proof
1. Fundamental Rights Violation: Talaq-e-biddat violated women’s right to equality (Article 14), non-discrimination (Article 15), and dignity (Article 21).
2. Patriarchal Control: The practice vested unilateral power in men, treating women as subordinates and depriving them of agency.
3. Absence of Rationality: Instantaneous and irrevocable divorce left no scope for reconciliation, thereby failing the test of reasonableness.
4. Comparative Law: Many Muslim-majority nations like Pakistan and Bangladesh had already abolished instant triple talaq, strengthening the case for reform in India.
5. Legislative Inaction: Despite Law Commission recommendations and women’s rights movements, no statutory intervention occurred until judicial pronouncement.
6. Constitutional Supremacy: The Court upheld that religion cannot be invoked to justify practices inconsistent with constitutional morality.
Abstract
The Shayara Bano case represents a paradigm shift in the interaction between personal law and constitutional governance in India. By declaring instant triple talaq unconstitutional, the Court reasserted that constitutional morality takes precedence over customary and religious practices that subjugate women. The judgment balanced freedom of religion with gender justice, recognizing that personal law cannot exist in isolation from the Constitution. It laid the foundation for applying the doctrine of manifest arbitrariness to strike down discriminatory practices and pushed forward the discourse on women’s rights within the framework of personal law.
This article analyzes the case comprehensively—its factual background, judicial reasoning, interplay of constitutional principles, and its impact on Indian society. By situating the judgment within broader constitutional jurisprudence, the discussion highlights how the judiciary plays a transformative role in advancing equality and justice, especially when legislative inertia persists.
Case Laws
1. Shayara Bano v. Union of India (2017)
Facts: Shayara Bano, married for 15 years, was unilaterally divorced by her husband through instant triple talaq. She challenged the validity of the practice under Articles 14, 15, 21, and 25.
Issues:
Whether triple talaq violated fundamental rights?
Whether personal law practices were immune from constitutional scrutiny?
Judgment: By a 3:2 majority, the Court declared instant triple talaq unconstitutional.
Justice Rohinton Nariman and Justice U.U. Lalit: Held talaq-e-biddat void under Article 14 on grounds of manifest arbitrariness.
Justice Kurian Joseph: Declared it invalid as it lacked sanction in Quran and was not an essential religious practice.
Chief Justice J.S. Khehar and Justice Abdul Nazeer (dissent): Urged Parliament to legislate instead of judicial intervention.
2. Kesavananda Bharati v. State of Kerala (1973)
Established the basic structure doctrine, affirming constitutional supremacy. In Shayara Bano, this principle was invoked to argue that personal laws must align with the core constitutional values of equality and dignity.
3. Maneka Gandhi v. Union of India (1978)
Expanded the interpretation of Article 21, linking it with Articles 14 and 19. This holistic reading strengthened the argument that arbitrary practices like triple talaq violate the right to life with dignity.
4. E.P. Royappa v. State of Tamil Nadu (1974)
Laid down the doctrine that arbitrariness and equality are antithetical. This case provided the jurisprudential basis for striking down triple talaq as arbitrary.
5. Shamim Ara v. State of U.P. (2002)
The Court held that mere pronouncement of talaq without reasonable cause and attempt at reconciliation is invalid. This precedent weakened the legal legitimacy of instant triple talaq long before Shayara Bano.
6. Danial Latifi v. Union of India (2001)
The Court upheld the Muslim Women (Protection of Rights on Divorce) Act, 1986, but interpreted it in a progressive way to ensure maintenance rights. This judgment reflected judicial sensitivity toward Muslim women’s rights, which continued in Shayara Bano.
7. Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008)
Reinforced that religious practices are subject to public order, morality, and health under Article 25. This reasoning supported the view that discriminatory practices cannot claim absolute religious immunity.
Conclusion
The Shayara Bano verdict exemplifies the judiciary’s transformative constitutionalism. By invalidating instant triple talaq, the Court:
Asserted the supremacy of fundamental rights over regressive personal laws.
Recognized constitutional morality as the yardstick for balancing religious freedom with gender justice.
Protected women from patriarchal subordination, ensuring dignity and equality in marital relations.
The judgment also catalyzed legislative reform, leading to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized the practice. More importantly, it signaled to society that constitutional governance is incompatible with practices rooted in gender discrimination.
FAQs
Q1. What is triple talaq (talaq-e-biddat)?
It is a form of divorce in which a Muslim man pronounces “talaq” three times in one sitting, instantly and irrevocably dissolving the marriage.
Q2. Why was triple talaq declared unconstitutional?
Because it was arbitrary, unilateral, and discriminatory, violating Articles 14, 15, and 21 of the Constitution.
Q3. Did the judgment ban all forms of talaq?
No, only instant triple talaq was struck down. Other forms like talaq-e-ahsan and talaq-e-hasan, which are more regulated, were not invalidated.
Q4. How did constitutional morality influence the judgment?
The Court emphasized that constitutional morality—based on equality, liberty, and dignity—overrides patriarchal practices, even if they are religiously sanctioned.
Q5. What legislative action followed the judgment?
In 2019, Parliament passed the Muslim Women (Protection of Rights on Marriage) Act, criminalizing the practice of instant triple talaq.
Q6. Is triple talaq banned in other countries?
Yes, countries like Pakistan, Bangladesh, and Egypt had abolished it long before India, showing that banning it was consistent with Islamic jurisprudence worldwide.
Q7. How did the dissenting judges view the issue?
Chief Justice Khehar and Justice Nazeer felt that the practice was part of personal law protected by Article 25 and suggested that Parliament should legislate rather than the Court striking it down.
Q8. What is the broader impact of the judgment?
The ruling empowered Muslim women, advanced gender justice, and reaffirmed the judiciary’s role in enforcing constitutional values against regressive practices.
