Author: Shruti Mittal, Vivekananda Institute of Professional Studies
To the Point
The Supreme Court of India in Shayara Bano v. Union of India (2017) delivered a historic ruling upholding the practice of talaq-e-biddat (instant triple talaq) to be unconstitutional and violative of fundamental rights. The judgment created a constitutional chasm between religious freedom under Article 25 and inviolability of Articles 14, 15, and 21 of the Indian Constitution. The judgment put an end to an antiquated and unilateral Muslim personal law practice discriminatory against women and promoting arbitrariness in divorce and marriage. The article deals with the sophisticated judicial reasoning of the verdict, examines the role played by legal maxims and principles, surveys the case laws on precedents, and highlights the socio-legal implication of the ruling.
Abstract
Practice of talaq-e-biddat, where a Muslim male can divorce his wife by pronouncing the word “talaq” thrice while sitting, was held to be unconstitutional by a 3:2 majority in Shayara Bano v. Union of India (2017). It was considered in the judgment that this one-way and instantaneous divorce is against Articles 14 (Right of Equality), 15 (Non-discrimination), and 21 (Right to Life and Dignity) of the Constitution. The court distinguished between obligatory and non-obligatory religious practices under Article 25 and viewed talaq-e-biddat as not being an obligatory religious practice of Islam. The judgement enforced the gender justice requirement under the constitution and paved the way for the Muslim Women (Protection of Rights on Marriage) Act, 2019, declaring triple talaq a criminal offense.
Use Of Legal Jargon
The case was decided on the principles of theory of manifest arbitrariness, constitutional morality, and the test of essential religious practices. The ruling was based on the audi alteram partem principles (right to hear), nemo debet esse judex in propria causa (no man should act as a judge in his own cause), and res judicata. Talaq-e-biddat was rejected on substantive due process reasons by the Court, having ruled that it was ultra vires the Constitution. Application of Article 13 brought the personal laws within the ambit of fundamental rights. The judgment reconciled jus divinum (divine law) and lex humana (human law) in constitutional terms. Furthermore, the majority employed the severability doctrine as a shield to safeguard Islam as a religion from practices not necessary for its survival.
The Proof
The petitioner Shayara Bano was divorced by her husband by talaq-e-biddat. The sudden termination of marriage led her to challenge the constitutional legitimacy of the practice and claim that it breached her fundamental rights. The Centre also became a party to her prayer, claiming the practice was discriminatory in nature and not supported under the Quran. The AIMPLB (All India Muslim Personal Law Board) had defended it as part of personal law under Article 25. But historical and theological studies cited by the petitioners, including Islamic scholarship, demonstrated that talaq-e-biddat was not Quranic directive-based and is actually condemned by the majority of Islamic schools of thought. The Law Commission of India in its 2017 report had also decried the unilateral nature of such a procedure of divorce. The evidence presented was constitutional (based on violation of Articles 14, 15, and 21) as well as theological (highlighting that the practice is neither binding nor essential in Islam).
Case Laws
Shayara Bano v. Union of India (2017) 9 SCC 1
The Supreme Court on a ratio of 3:2 held talaq-e-biddat to be unconstitutional. Justice Nariman and Justice Lalit held it to be manifestly arbitrary under Article 14. Justice Kurian Joseph held it against the Quran and hence not a part of Islam. The minority (CJI Khehar and Justice Nazeer) left it to the Parliament for legislation.
Mohd. Ahmed Khan v. Shah Bano Begum (1985) SC 945
The Court held that a Muslim woman is entitled to claim maintenance under Section 125 CrPC regardless of personal law. The judgment validated the predominance of constitutional laws over personal law.
Daniel Latifi v. Union of India (2001) SC 3958
Upheld the legitimacy of the Muslim Women (Protection of Rights on Divorce) Act, 1986 but construed it so as to make reasonable and just provision to divorced Muslim women.
Sarla Mudgal v. Union of India (1995) SC 1531
It upheld the monogamy requirement for Hindu men and condemned arbitrary conversion to Islam with a view to practicing polygamy. It reaffirmed the state’s power of legislation in matters of personal laws.
Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1
While indirectly connected, this ruling was concerned with the trial of essential religious practice and constitutional morality, which was the source of the triple talaq ruling.
A.S. Narayana Deekshitulu v. State of A.P. (1996) SC 1765
Decided that secular courts have jurisdiction over interference in religious practices if they are established to be non-essential or unconstitutional.
Conclusion
Shayara Bano judgment is a landmark of Indian constitutional jurisprudence. It reminded us that personal laws cannot supersede the constitutional fundamental rights. The Supreme Court, in declaring talaq-e-biddat as unconstitutional, took a big step in bringing personal laws in line with the principles of equality, dignity, and gender justice. The judgment paved the path for the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized triple talaq and made it a cognizable and non-bailable offence. Albeit criticized over criminalization, the Act served as a deterrent and conferred legal teeth on the judicial judgment. In a balancing of religious autonomy and constitutional supremacy, the Court prioritized constitutional morality over majoritarian orthodoxy. It reinforced the fact that no religious or otherwise practice can deprecate the dignity and rights of a human person. The ruling reflects the shift in Indian jurisprudence from formal equality to substantive justice. It also gives a strong message that gender rights cannot be negotiated in any democratic, plural society regulated by the rule of law.
FAQS
Q1. Triple talaq is defined as what?
Triple talaq or talaq-e-biddat is a technique of Islamic divorce through which a Muslim man may divorce his wife by pronouncing the word “talaq” three times during one sitting, without a judge and wife’s consent.
Q2. Is triple talaq mentioned in the Quran?
No. Triple talaq is not sanctioned by the Quran. The Quran visualizes a more logical and reconciliatory way of divorce which attempts at reconciliation and a wait period (iddat).
Q3. What was the main issue involved in the Shayara Bano case?
The main issue was whether triple talaq is constitutionally valid or not. The petitioner opposed it on the grounds that it was violative of her fundamental rights under Articles 14, 15, and 21.
Q4. What was decided in Shayara Bano v. Union of India by the Supreme Court?
The Court in 3:2 majority held triple talaq as being unconstitutional. It declared the practice to be arbitrary, not Islamic, and against the basic rights of Muslim women.
Q5. What is Muslim Women (Protection of Rights on Marriage) Act, 2019?
This Act makes instant triple talaq a criminal offence punishable by imprisonment for a maximum of three years. It also awards the woman victim subsistence allowance and custody of children.
Q6. Was the Shayara Bano case judgment unanimous?
No. The decision was split. Three judges held that the practice is against the Constitution, but two judges (CJI Khehar and Justice Nazeer) believed that the matter has to be left to Parliament.
Q7. In what way does the verdict ensure gender justice?
The verdict upholds Muslim women’s equality, non-discrimination, and dignity under the Constitution, thus ensuring gender justice at the cost of patriarchal religious practice.
Q8. What were the legal principles applied in the judgment?
Principles such as manifest arbitrariness, constitutional morality, essential religious practices, and severability were applied to conclude whether triple talaq was legal or not.
Q9. Is the state justified in intervening in personal laws?
Yes, to the extent that personal law practices are contrary to fundamental rights or not fundamental religious practices, the state could regulate or prohibit them in the interest of constitutional morality.
Q10. Whether the Act of 2019 is retrospective in nature?
No, Muslim Women (Protection of Rights on Marriage) Act, 2019 is not retrospective. It has come into force from the day it was established and will be enforced in future cases of triple talaq.
