Author: Ashra Usmani, United University, Prayagraj
To the Point
The Supreme Court in Shayara Bano v. Union of India (2017) struck down talaq-e-biddat (instant triple talaq) as unconstitutional, calling it arbitrary and violative of fundamental rights, particularly Articles 14, 15, and 21. This landmark verdict led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalising instant triple talaq and marking a decisive shift in India’s approach to gender justice in personal laws.
Abstract
In the landmark case of Shayara Bano v. Union of India (2017), the Supreme Court of India examined the constitutionality of talaq-e-biddat under Muslim personal law. The court, in a 3:2 majority, declared the practice unconstitutional, arbitrary, and violative of fundamental rights, especially Articles 14 and 21. The judgment acknowledged that personal law practices cannot violate constitutional guarantees and emphasized the importance of gender equality, dignity, and secularism. The situation sparked a national discussion and led to the passage of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which made instant triple talaq a criminal offense. This judgment reasserted the court’s role in balancing religious freedom with constitutional morality and gender justice.
Use of Legal Jargon
Talaq-e-Biddat: A form of irrevocable divorce in Muslim personal law where a husband pronounces “talaq” thrice in one sitting.
Manifest Arbitrariness: A legal standard under Article 14 to strike down laws or practices that are unreasonable and without fair justification.
Essential Religious Practice Doctrine: A constitutional test to determine whether a practice is fundamental to a religion under Article 25.
Personal Law vs Fundamental Rights Conflict: The case highlighted the long-standing tension between codified or uncodified personal laws and the Constitution of India.
Judicial Review: Supreme Court’s power to examine the constitutionality of practices/laws under Article 32 and Article 13.
The Proof
Petitioner: Shayara Bano, a Muslim woman who was unilaterally divorced by her husband via talaq-e-biddat in 2015, filed a Writ Petition under Article 32 of the Constitution.
Assertions: She contested the constitutional validity of triple talaq, nikah halala, and polygamy, arguing that these practices were discriminatory, capricious, and in violation of her fundamental rights.
Participants: Indian government, All India Muslim Personal Law Board (AIMPLB), among others.
Issues Raised:
talaq-e-biddat is an vital religious practice protected under Article 25.
Whether it violates Article 14 (Right to Equality), Article 15 (Non-discrimination), and Article 21 (Right to Life and Dignity).
Case Laws
1. Shamim Ara v. State of U.P. (2002) 7 SCC 518
Importance: Stated that simply declaring talaq is inadequate without evidence of justifiable reasons and previous efforts at reconciliation.
Used in Shayara Bano: Reaffirmed that arbitrary divorce without effort of reconciliation is not valid under Islamic law.
2. Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573
Importance: The court declined to consider a PIL contesting personal laws, stating that it is a legislative issue.
Used in Shayara Bano: To contrast the present case where a specific practice (Triple Talaq) was challenged on constitutional grounds.
3. Daniel Latifi v. Union of India, (2001) 7 SCC 740
Significance: Upheld the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 while ensuring fair maintenance to divorced Muslim women.
Used in Shayara Bano: To argue that Muslim women have constitutional protections under Article 14 and 21 even within personal law.
4. Sarla Mudgal v. Union of India, (1995) 3 SCC 635
Significance: Addressed the issue of a Hindu man converting to Islam to contract a second marriage without divorcing the first wife. Held such action as bigamy.
Used in Shayara Bano: Referred in context of reforms and misuse of religious conversion in matrimonial matters.
5. John Vallamattom v. Union of India, (2003) 6 SCC 611
Significance: Declared Section 118 of the Indian Succession Act, 1925 (which discriminated based on religion) as unconstitutional.
Used in Shayara Bano: To show that personal laws or their statutory forms can be struck down if they violate fundamental rights.
6. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996)
Significance: The court refused to entertain a PIL challenging personal laws, indicating it is a matter for legislation.
Used in Shayara Bano: As support for the constitutional right to gender justice even in religious or customary practices.
7. Krishna Singh v. Mathura Ahir, (1980) 4 SCC 162
Significance: Stated that religious practices can be regulated by the State in the interest of social welfare and reform.
Used in Shayara Bano: To support the argument that religious freedom is not absolute and must align with constitutional morality.
8. A.S. Narayana Deekshitulu v. State of Andhra Pradesh, (1996)
Significance: Distinguished between essential and non-essential religious practices.
Used in Shayara Bano: To argue that Talaq-e-Biddat is not an essential religious practice under Islam and thus can be struck down.
9. Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615
Significance: Maintained the entitlement to religious freedom as stated in Article 25.
Used in Shayara Bano: Referred by dissenting judges (CJI Khehar) to uphold religious practices unless they offend public order, morality, or health.
10. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556
Significance: Landmark case granting maintenance to Muslim women under Section 125 CrPC, despite personal laws.
Used in Shayara Bano: As a precursor to the movement toward gender-just reforms in Muslim personal law.
Conclusion
The Shayara Bano case is a constitutional milestone in India’s legal landscape. It marked a pivotal moment in recognising that gender justice and constitutional morality must prevail over archaic and arbitrary religious practices. The Supreme Court, while maintaining respect for religious freedom under Article 25, made it clear that such freedom does not extend to practices that are manifestly arbitrary or discriminatory.
By declaring talaq-e-biddat unconstitutional, the Court protected thousands of Muslim women from being subjected to unjust and unilateral divorce. This decision exemplified the court’s duty as a guardian of fundamental rights and reaffirmed the commitment to secularism, equality, and dignity of women.
Importantly, the verdict resulted in tangible legislative reform. The Muslim Women (Protection of Rights on Marriage) Act, 2019, rendered triple talaq both invalid and subject to penalties. This addressed a long-standing gap in Indian personal law jurisprudence where certain practices, even if socially regressive, were protected under the veil of religious freedom.
However, the judgment also opened debates on whether criminalisation of personal law matters was a progressive step or an overreach. Critics argue that making it a criminal offense could lead to the misuse of law and potentially harm families. Supporters contend that without penal consequences, such practices would continue unchecked.
The case serves as a benchmark for future legal discourse on personal laws, pushing towards harmonizing religious customs with the Constitution. It has set a precedent for reform in other contentious practices like nikah halala, polygamy, and inheritance rights. The decision is a reminder that constitutional values of equality and dignity must not be sacrificed at the altar of custom or tradition. In summary, the Shayara Bano ruling is more than merely a legal decision—it represents a societal transformation.
It reflects the evolving nature of Indian jurisprudence where progressive interpretation of the Constitution ensures justice for the marginalized and oppressed. It serves as a guide for the future of constitutionality decisions that consider gender issues.
FAQS
1. What is triple talaq?
Triple Talaq, also known as Talaq-e-Biddat, is an Islamic practice by which a Muslim man could divorce his wife unilaterally and instantaneously by pronouncing the word “talaq” (divorce) three times in one sitting, either orally, in writing, or even electronically (SMS, email, WhatsApp).
2. What was the verdict of the Supreme Court in the Shayara Bano case?
In a 3:2 majority decision, the Supreme Court declared triple talaq unconstitutional as it violated fundamental rights under Articles 14 and 21.
3. Is triple talaq now a criminal offense in India?
Yes. Under the Muslim Women (Protection of Rights on Marriage) Act, 2019, triple talaq is punishable with up to 3 years imprisonment and fine.
4. What constitutional articles were discussed in the case?
The case focused on Article 14 (equality), Article 15 (non-discrimination), Article 21 (life and personal liberty), and Article 25 (freedom of religion).
5. What is the significance of this case in personal law reform?
It set a precedent by affirming that personal law cannot override fundamental rights and promoted gender justice within religious frameworks.
6. Can a divorced Muslim woman gets maintenance after triple talaq?
Yes. The 2019 Act ensures maintenance and rights of custody for children, and earlier cases like Shah Bano affirmed her right under Section 125 CrPC.
7. Was the verdict unanimous?
No. It was a split verdict (3:2), with the majority striking down triple talaq and the minority favoring legislative action over judicial intervention.
