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Shayara Bano vs. Union of India

BY – Ashok Kumar Choudhary

Talaq-e-Biddat

Triple Talaq, also known as talaq-e-biddat (immediate divorce). It is a form of Islamic divorce practice in India to dissolve marriage connections, performed by Muslims in which the husband can divorce his wife by saying Talaq three times. Over the years, Muslim women in India have complained about living in constant fear of being expelled from their matrimonial houses in a matter of seconds since a Muslim man, may end years of marriage by just pronouncing the word “talaq” (divorce) three times. Several decades ago, a campaign to eliminate the practice of unilateral instant “triple talaq” began in India. However, it garnered attention few years ago when a 35-year-old mother of two appealed the Supreme Court for justice.

 FACTS-

Shayara Bano vs. Union of India and Ors. 2017

  • Shayara Bano, the petitioner, had been married to her husband, Rizwan Ahmed, for 15 years. He divorced her in 2016 using immediate triple talaq (talaq -e biddat), which is a procedure that permits a man to divorce his wife by repeating the word “talaq” three times in one sitting without his wife’s permission.
  • This is an Islamic tradition that allows males to effect immediate and irrevocable divorce by saying the word ‘talaq’ (Arabic for divorce) three times at once in spoken, written, or, more recently, digital form. Triple talaq, polygamy, and nikah halala (the practice of compelling women to marry and divorce another man so that her former husband might re-marry her after triple talaq).
  • The wife contested the divorce, requesting that the Supreme Court issue a writ declaring the divorce unlawful ab initio because it violated her basic rights. As a result, the constitutionality of Triple Talaq was brought into doubt before a Supreme Court Constitution bench of five judges.
ARGUMENTS-
Petitioner
  • The petitioner argues that triple talaq is not a form of divorce recognized by the Muslim personal law (Shariat) act, 1937. He said that several high courts and supreme court decisions have restricted Muslim men’s unilateral right to divorce women and have criticized the practice of triple talaq allowed by the Quran, this judgement affirms that the Quran permits divorce for reasonable cause and if a preceded attempt at reconciliation. He urged the court to overturn triple talaq because it violates Article 14 and 15 of the constitution by granting Muslim males an uncodified right to divorce.
  • He also said that if triple talaq is repealed, the rule of divorce for Muslims would be the Dissolution of Muslim Marriage Act of 1939, which would apply equally to the whole Muslim population, regardless of gender.
Respondent
  • The respondent said the Shariat Act of 1937 does not codify basic Muslim personal law, but it does say that Sharia shall apply as a rule of decision to Muslims, above any tradition or practice to the contrary. He said that the purpose of the act was to abolish customs that discriminated against women in matters of inheritance. marriage is a private transaction governed by Islamic law no official legislation can’t change it.
  • Mr. Sibal refers to the discussions in the Constituent Assembly, which state that personal laws are not covered by Article 13. He stated that the assembly rejected an amendment that attempted to add “and anything else” to the description of legislation under consideration, as well as the inclusion of such law under article 13. He contended that the explicit inclusion of personal law in the concurrent list, as well as its omission in article 13, show the intention of the constitution’s drafters to exclude personal law.
  • You can refer to article 25 (2) for the right to freedom of religious exercise. He said that the constitution gives Parliament the authority to pass social reform legislation on secular activities linked with religious rituals. As a result, a court may only examine the law’s validity after it has been passed by Parliament. Mr. Sibal cited money gathering in a temple as an example of such secular behavior.
  • He also said that Muslim women may even benefit from rapid release from poor marriages. He offered four alternatives for Muslim women to avoid the discriminatory practice of triple talaq:

1. She can register the marriage under the Special Marriage Act of 1954,

2. insert conditions into the nikahnama to prevent her husband from performing triple talaq,

3. delegate the right to talaq to herself,

4. insist on the payment of a large Mehar sum to prevent the use of triple talaq.

 JUGDMENT
  • Justice Jagdish Khehar and Justice J. Abdul Nazeer said that triple talaq is a part of Muslim personal law, and article 25 gives the right to every citizen of India to peruse their religion and these religious practices are protected, so that’s not their jurisdiction.
  • Is Tripple talaq valid or invalid judiciary cannot decide that only parliament can decide that something it’s not their jurisdiction.
  • So, they said they can restrict this practice for 6 months and then the parliament of India can decide that it’s valid or invalid.
  • Justice. Rohinton Nariman and Justice U.U Lalit said whether the law is before from the constitution or after, all the laws have to be consistent with the fundamental rights, yes article 13 cannot interfere in personal laws, we cannot challenge article 13 with personal laws, but instant triple talaq is not challenged in article 13.
  • It was challenged in articles 14,15,21 and 25 And article 14 clearly states that if any law or practice is arbitrary and violated the fundamental rights so the supreme court has the power to declare it unconstitutional. Instant triple talaq is arbitrary and it violates the rights of women.
  • Justice. Kurian Joseph said instant triple talaq practice is un-Islamic and it is not an essence of Muslim religious practice.
  • So, by the majority 3:2 instant triple talaq was declared illegal and unconstitutional and gave the order to the central government to make it a law. And in Aug 2017 supreme court declares triple talaq as illegal but after the judgement, there were many triple talaq cases are reported so they have to make a rule against Tripple talaq. And in December 2017 a bill was passed in Lok Sabha
  • Muslim (PROTECTION OF RIGHTS ON MARRIAGE) bill 2017 but it was not passed by Rajya Sabha and it lapsed. In September 2018 cabinet passed an ordinance and in which tipple talaq became a punishable offence and 3 years of imprisonment was prescribed, and in July 2019 the bill was passed in Lok Sabha and Rajya Sabha and received the assent of the president of India.
Muslim Women (PROTECTION OF RIGHTS ON MARRIAGE) Act,2019
  • Offence and penalty: supreme court clearly said that Tripple talaq is an illegal act and this bill declare Tripple talaq a cognizable offence and imprisonment up to 3 years plus fine.
  • Who can file a complaint: Only a wife can file the complaint against whom talaq has been declared or any person who is related to her with blood or marriage can file the case on her behalf.
  • Bail: Magistrate can grant the bail only after hearing the women and then if the magistrate believes that there are some reasonable grounds for granting bail.
  • Allowance and Custody: The woman is also entitled to a subsistence allowance or Maintenace for herself and her dependent children from her husband and also, she is entitled to the custody of her minor children.
Conclusion

The landmark decision in the Shayra Bano case is a step toward equality and it has laid the foundation for future personal law and social reforms. This judgement addressed the minorities in a viable way, which is a step toward secularism. Although gender justice was not the primary focus, it has enormous beneficial consequences for promoting women’s rights and gender equality in India. This decision is supposed to be considered fairly and to support Muslim women in living a better and more secure life as provided by the constitution.

References

ihttps://www.escr-net.org/caselaw/2018/shayara-bano-and-others-v-union-india-and-others-writ- petition-c-no-118-2016

iihttps://main.sci.gov.in/supremecourt/2016/6716/6716_2016_Judgement_22-Aug-2017.pdf

iiihttps://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf ivhttps://www.scobserver.in/court-case/triple-talaq-case/day-4-of-arguments-respondents-kapil-sibal-aimplb

vhttps://scroll.in/article/848076/religion-a-matter-of-faith-not-logic-cji-khehars-dissenting-opinion-on-triple-talaq

vihttps://egazette.nic.in/WriteReadData/2019/209473.pdf

viihttps://prsindia.org/billtrack/the-muslim-women-protection-of-rights-on-marriage-bill-2017

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