Shayara Bano v. Union of India

Bench: Jagdish Singh Khehar, CJI

Facts:

Rizwan Ahmad (Husband) pronounced “Talaq, Talaq, Talaq” in the presence of two witnesses and delivered “Talaq nama” to Shayara Bano (wife). She filed a petition before the Supreme Court seeking a declaration that the practices of Instant Triple Talaq (ITT), polygamy, and nikah halala in Muslim personal law were illegal, unconstitutional, and in violation of Articles 14 (equality before law), 15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience and religion) of the Indian Constitution.

The Court however chose to examine the issue of ITT alone. The Union of India supported the petition. Among the others who intervened in this case, the All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind argued that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law and that the matter was in the domain of the legislature.

The Bebaak Collective and the Centre for Study of Society and Secularism – two organisations working with Muslim women – supported the petition and urged the Court to declare that personal law was subject to the Fundamental Rights. Bharatiya Muslim Mahila Andolan and Majlis – also women’s rights organisations – argued that in view of previous decisions of the Court, the bench need not consider the question whether constitutional validity of ITT, but should rather emphasise the existing legal remedies.

Issue:

• Whether talaq-e-biddat is islamic in nature?
• Whether the Muslim personal law (shariat) act, 1937 confers statutory status to the subjects regulated by it or is it still covered under “personal law” which is not “law” under article 13 of the constitution as per previous the supreme court judgments?

• Is it protected by article 25 of the constitution?

Judgement:

Issue 1 – The bench was satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. They were of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal law’.

Issue 2 – In the considered view of the bench, the practice of talaq-e-biddat cannot be struck down on the three non-225 permissible/prohibited areas which Article 25 forbids even in respect of personal law. It is therefore not possible to uphold the contention raised on behalf of the petitioners on this account. As Personal law is a matter of religious faith, and not State action, it can’t he said to be in violation of Articles 14, 15 and 21 of the Constitution of India.

Issue 3 – The Court held that Hence, talaq-e-biddat could not be said to be an integral part of the Muslim faith and hence could not be immunized by resorting to Article 25.