Shayara Bano v. UOI [AIR 2017 9 SCC 1 (SC)]

The practise of Triple Talaq was held as unconstitutional.

Bench – Rohinton Nariman, U.U. Lalit, Kurian Joseph, J.S. Khehar and Abdul Nazeer.

Facts – Shayara Bano was in a marital relationship with Rizwan Ahmed as his wife for 15 years. He divorced her in 2016 with an instant triple talaq (talaq-e-biddat). She filed a writ case before the Apex Court, requesting that three practises, namely Talaq-e-biddat, Polygamy, and Halal Nikah, be declared unlawful because they contravene Articles 14, 15, 21, and 25 of the Constitution.

Talaq-e-biddat is a procedure that allows a man to divorce his wife without her agreement by saying talaq three times in one session. Nikah halala is a procedure in which a divorced woman who wants to remarry her spouse must marry a second husband and get divorce from him before returning to her first husband. Polygamy, on the other hand, allows Muslim men to have multiple wives.

Shayara Bano, the Union of India, several women’s rights organisations, and the All-India Muslim Personal Law Board were asked to submit written submissions on the issues of talaq-e-biddat, nikah halala, and polygamy to the Apex Court. Ms Bano’s claim that these practises are unconstitutional was endorsed by the Union of India and women’s rights organisations including Bebaak Collective and Bhartiya Muslim Mahila Andolan. The AIMPLB has maintained that unwritten Muslim personal law is not susceptible to judicial examination under the Constitution, and that these are vital Islamic religious traditions guaranteed under Article 25.  On March 30, 2017, the Apex Court convened a five-judge constitutional bench after hearing Shayara Bano’s appeal.

Issues –

• Is the practise of talaq e biddat (triple talaq) an obligatory Islamic practise?
• Is triple talaq a violation of fundamental rights as under the Constitution?

Judgment – The Apex court’s five-judge bench issued its judgement in the triple talaq case, calling the practise as contravening the provisions of Constitution by a 3:2 majority. The court ordered Parliament to pass legislation prohibiting the practise of triple talaq.

While referring to the talaq-e-biddat Justices Rohinton Nariman and U. Lalit stated that Muslim personal law (shariat) application 8 of 1937 regulates it.  They argued that the practise is unconstitutional since it is clearly ambiguous.

While the decision of Justice Joseph was the same as the majority, however he took a different approach for it. In his concurring opinion, Justice Kurian Joseph stated that triple talaq is prohibited by the Quran and hence has no legal standing. Justice Kurian stated that something which is considered wrong in the holy Quran cannot be considered good in Shariat. This implies that something which is bad in theology shall be termed as bad in law.

Incidentally, Chief Justice Khehar and Justice Abdul Nazeer’s dissenting minority opinion connected the rise of personal law to the position of basic rights in the constituent assembly discussion on Articles 25 and 44. They claimed that the Shariat Act of 1937 does not control triple talaq, but that it is an inherent aspect of personal law and as a result, Article 25 protects it. Furthermore, legislation is considered to be the remedy to the gender discriminatory practise of talaq-e-biddat, and not a contest to the constitutional validity of the said gender discriminatory practise.