Shayara Bano v. Union of India: A Landmark Case for Gender Equality in India
Author name: Asmi Kedare, a student at Nari Gursahani Law College.
The case of Shayara Bano v. Union of India, decided by the Supreme Court of India in 2017, is indeed a landmark case in the legal landscape of India particularly concerning the issue of triple talaq, an instant form of divorce prevalent among some Muslim communities, unconstitutional and illegal. The case holds significant importance in understanding the intersection of personal laws, gender justice, and constitutional rights in India. In this case analysis, we will delve into the background, facts, legal arguments, judicial reasoning, and implications of the Shayara Bano case.
BACKGROUND:
Shayara Bano, a Muslim woman, was residing in Uttarakhand and was married to Rizwan Ahmed for 15 Years. In October 2015, her husband sent her a letter from Dubai, uttering the word “talaq” thrice, thereby effecting an instant divorce (triple talaq) under Muslim personal law. She challenged the validity of triple talaq, polygamy, and nikah halala after her husband divorced her by uttering the word “talaq” three times instantaneously. This practice, while controversial within the Muslim community itself, remained legal under personal laws governing marriage and divorce. Bano contended that triple talaq violated her fundamental rights enshrined in the Indian Constitution, particularly Articles 14, 15, 21, and 25 including equality, dignity, and the right to life.
TRIPLE TALAQ:
Triple Talaq means where a Muslim man can give divorce to his wife by saying the word ‘Talaq’ three times. Due to the development of technology, this concept of triple talaq was misused by the husbands by sending voice notes, WhatsApp messages, through video call and all. Due to this, the Muslim women was prone to abuse and thus they were financially dependent on their husband.
FACTS OF THE CASE:
- Shayara Bano, the petitioner, challenged the constitutionality of triple talaq, polygamy, and nikah halala practices prevalent in Muslim personal law.
- She argued that these practices violate the fundamental rights of Muslim women guaranteed under the Indian Constitution, including equality before the law, non-discrimination on the grounds of sex, and the right to life and personal liberty.
- The respondent in the case was the Union of India, representing the State’s interest in upholding constitutional values and ensuring gender justice.
ISSUES:
- Whether the practice of talaq-e-biddat specifically mentioning Instantaneous Triple Talaq an essential practice of Islam?
- Whether the practice of Instantaneous triple talaq violate any fundamental rights of the constitution?
- Whether Triple Talaq protected under Act 25 of the constitution?
- Does Shariat Act give triple talaq Applicability?
ARGUMENTS:
- Petitioners:
Mr. Amit Chadha, the advocate of the petitioner begins his argument with that in the Muslim Personal law the divorce by Triple Talaq has no recognition. He gave a different solution for Triple talaq where the whole Muslim community will get divorced irrespective of gender through “Dissolution of Muslim Marriage Act, 1939”.
Bano and other petitioners argued that triple talaq discriminates against Muslim women by giving husbands unilateral power to unilaterally dissolve the marriage without requiring any justification or judicial intervention.
They argued this violated their right to equality and equal protection under the law. They also emphasized the arbitrary nature of the practice, leaving women vulnerable to financial insecurity and social stigma.
The petitioner also pointed out that these practices contravene international conventions and treaties ratified by India, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
- Respondents:
Mr. Kapil Sibal, the advocate of the respondents, the Union of India, and some Muslim organizations like AIMPLB, defended the practice as a part of religious freedom and personal laws governing Muslim communities. They argued that the court should not interfere with religious and cultural practices without compelling reasons. They also pointed out that other Muslim countries permitted triple talaq, implying that it wasn’t inherently discriminatory.
He said that it is important to protect and secure the rights of minorities like Muslim community in the Hindu majority country. He also responded that when the Quran is silent on triple talaq then there is nothing in it that prohibits triple talaq.
He also said that Article 13 does not include anything which is mentioned in personal laws. He proposed four alternate options to Muslim women for remedies and reliefs which are given below:
- Special Marriage Act, 1954
- Prohibition of the right of the husband to divorce by way of talaq-e-biddat (Nikah Nama)
- Insisting higher payment of Mehr amount.
He ended his arguments by emphasizing that the Hanafi school is a religious denomination where right to practice religion is protected under Article 26 of the Constitution of India.
COURT’S DECISION:
The Supreme Court of India, in its judgment delivered on August 22, 2017, by a 3:2 majority, declared the practice of instant triple talaq as unconstitutional and violative of Muslim women’s fundamental rights. The 5 judge bench that heard the case in 2017 included judges of different religion. The five judges were Chief Justice JS Khehar (a Sikh), Justices Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu), and Abdul Nazeer (a Muslim). The key points of reasoning include:
1. Unconstitutional and Arbitrary: The court held that triple talaq is arbitrary and does not form an essential part of Islamic practice. It observed that the practice is not integral to Islam and is inconsistent with the Quranic injunctions.
2. Violation of Fundamental Rights: The court emphasized that triple talaq violates Muslim women’s fundamental rights, including the right to equality and non-discrimination, guaranteed under Articles 14 and 15 of the Constitution.
3. Not Protected under Article 25: The court clarified that personal laws, including Muslim personal law, are subject to the Constitution’s overarching principles. Practices such as triple talaq cannot claim protection under Article 25, which guarantees the right to freedom of religion.
4. Legislative Intervention: While striking down triple talaq, the court urged the Indian Parliament to enact a suitable legislation to govern divorce among Muslims, emphasizing the need for gender-just laws that uphold constitutional values.
IMPACT:
- Immediate: The immediate impact was the abolishment of triple talaq, offering protection and legal recourse to Muslim women facing arbitrary divorce. The judgment was hailed by women’s rights activists and seen as a significant step towards gender equality.
- Wider Implications: The case sparked debates and discussions within the Muslim community regarding personal laws, religious practices, and their compatibility with constitutional values. It also raised questions about the role of the judiciary in reforming personal laws and balancing religious freedom with individual rights.
- Legislative response: Subsequently, the Indian Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalizing the practice of triple talaq with imprisonment terms. This further reinforced the legal ban on the practice.
- Gender Justice: The judgment marks a significant victory for gender justice and women’s rights in India. It reaffirms the principle of equality before the law and underscores the state’s obligation to protect the rights of marginalized and vulnerable groups, including Muslim women.
- Role of the Judiciary: The Shayara Bano case highlights the judiciary’s role in safeguarding constitutional values and ensuring justice for all citizens, particularly marginalized groups. It demonstrates the judiciary’s commitment to upholding the rule of law and protecting fundamental rights.
- Empowerment of Muslim Women: The judgment empowers Muslim women by granting them agency and protection against arbitrary and unilateral divorce. It strengthens their position within the family and society and enables them to assert their rights more effectively.
CRITICISIMS AND CHALLENGES:
While the Shayara Bano case was a landmark judgment, it also faced criticism:
- Overreach by the judiciary: Some argued that the court overstepped its boundaries by interfering with religious practices.
- Uniform Civil Code: The judgment reignited the debate surrounding a Uniform Civil Code for all communities in India, raising concerns about potential homogenization and the erosion of minority rights.
- Implementation challenges: Ensuring effective implementation of the law and tackling discriminatory practices within communities remains a challenge.
CONCLUSION:
The Shayara Bano case stands as a significant milestone in India’s journey particularly towards concerning the rights of Muslim women and gender equality. The Supreme Court’s decision to declare instant triple talaq unconstitutional reaffirms the principles of equality, dignity, and justice enshrined in the Indian Constitution It highlights the importance of balancing religious freedom and individual rights, and the judiciary’s role in enforcing constitutional principles. It underscores the judiciary’s role as a guardian of fundamental rights and a custodian of constitutional values. However, the case also exposes the complex challenges involved in reforming personal laws and ensuring their alignment with evolving social values and fundamental rights. The fight for gender equality in India continues, and the Shayara Bano case serves as a powerful reminder of the need for sustained dialogue, awareness, and legal interventions to bridge the gap between tradition and fundamental rights. Recently, in the year 2019, on 30th July, the parliament of India passed the Muslim Women(Protection of Rights on Marriage)Bill, 2019, that declared triple talaq illegal and unconstitutional and punishable from 1st august 2019.
