Shayara Bano vs. Union of India & Ors.
Muslim Law, or Mohemmadan Law, is another personal law besides Hindu law which
governs both the sects of Muslims in India (Sunnis and Shias). However, since it
is not codified and hence subject to interpretations, it is hard to identify the
problems faced by many in reality. The present case is one such example that
brings out the cruelty towards women in the name of divorce, especially "Triple
Talaq" or "Talaq-e-biddat".
As the name suggests, a Muslim man in this form of divorce can instantly divorce
his wife by pronouncing "Talaq" three times in one sitting. The two other forms
of divorce, Talaq-e-Hasan, and Talaq-e-Ahsan, at least give some time to the
husband to repent and come back, but this type, once pronounced, cannot be
revoked and taken back.
If the husband realises his mistake, repents his conduct and wants to marry the
same girl again, he cannot do so without following the procedure of Nikah Halala
wherein if the husband wants to remarry his wife again after the divorce, the
woman first has to marry another man and then her current husband would initiate
divorce voluntarily after which she has to observe an iddat period and then only
she can marry her former husband. This is again another cruelty in itself faced
On August 22, 2017 the Indian Supreme Court declared Muslim divorce through
Triple Talaq unconstitutional. By way of Triple Talaq (Talaq-e-bidat) Muslim men
could divorce their wives instantly and without state intervention by
pronouncing the word "Talaq" thrice. The case had been brought before the court
by the petitioner Shayara Bano and other women who had been divorced in this
way. Different Muslim women's groups had intervened to support them. On the
outcome, the court was split three to two.
The three judges in the majority regarded Triple Talaq invalid, but used
different reasoning to arrive at their conclusion: Justices Rohington Nariman
and U.U. Lalit held that the 1937 Muslim Personal Law (Shariat) Application Act,
in so far as it refers to Triple Talaq, violated Article 14 of the Indian
constitution - the right to equality. Justice Kurian Joseph instead argued that
Triple Talaq was not a valid practice in Islam and was therefore illegal.
The minority view, held by Chief Justice Jagdish Singh Khehar and Justice Abdul
Nazeer, was that though Triple Talaq was undesired, the courts could not strike
it down, and only the parliament could regulate on the matter. The judgement is
a landmark case in the Indian women's movement's agitating for more rights under
religion based personal laws. At the same time, however, the aspect of gender
equality unfortunately did not play such a strong role in the argumentation as
it could have, and the judgement does not provide a clear road map for dealing
with other discriminatory aspects in the personal law system in the future.
Shayara Bano case led to the ban of the Muslim practice of Triple Talaq. It is a
process of divorce under the "Sharia Law", where a Muslim man can instantly
divorce his wife by pronouncing the word "Talaq" three times, without any state
intervention. The means of communication might be in any form i.e. written,
oral, or maybe electronic, which further enhanced a Muslim woman's vulnerability
during this sort of unilateral and arbitrary divorce. "Talaq" is the Arabic word
There are three types of divorce under Sharia Law from which only "Talaq-e-biddat"
is irrevocable. It is mainly prevalent among India's Muslim communities that
follow the Hanafi School of Law. Under this law, Muslim women can't divorce
husbands whereas husbands can. Women need to move a court proceeding for divorce
under the Muslim Personal Law (Shariat) Application Act,1937. For 15 years,
Shayara Bano had been married to Rizwan Ahmed.
In 2016, through oral Triple Talaq (Talaq -e biddat), Rizwan divorced her. A
Writ Petition was then filed by her in the Apex Court saying, "As a violation of
Articles 14,15,21 and 25 of the constitution, performance of the practices of -
Talaq-e-biddat, polygamy, nikah-halala - should be held unconstitutional."
Title of the case: Shayara Bano vs. Union of India & Ors.
Citation: AIR 2017 9 SCC 1 (SC)
Name of Appellant: Shayara Bano and others
Name of respondent: Union of India, All India Muslim Personal Law Board and
Court: The Supreme Court of India
Date of judgment: 22nd August, 2017
Bench: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton
Fali Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench.
What is Triple Talaq?
Triple Talaq means a practice whereby uttering the word called 'Talaq' thrice
times the Muslim man can get divorced. With the advancement of technology, this
concept was misused, where husbands send Talaq through even voice notes,
WhatsApp messages, and all. Here the means of communication could be in any form
i.e., written, oral, or even electronic, which further enhances a woman's
vulnerability in this arbitrary and unilateral divorce1.
This controversial custom given that it is an intersection between gender
identity and community has unsurprisingly left Muslim women prone to abuse and
in a morbid state, especially given the socio-economic aspect where most of the
women are financially dependent on their spouse and the added fear of this
whimsical divorce leaves many cases of marital abuse unreported.
Facts of the Case:
Issues of the Case:
- Shayara Bano's marriage with Rizwan Ahmed was for 15 years. She was one of
those women who were survivors of domestic violence and dowry harassment.
- In 2016, she had been unilaterally divorced through instantaneous Triple Talaq.
- A writ petition was then filed by her before the Supreme Court.
- The petition stated a declaration that "the practices of Instant Triple Talaq,
polygamy and Nikah Halala in Muslim personal law were illegal, unconstitutional,
and in violation of several fundamental rights i.e., 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 Union of India as well as the women's rights organizations like the Bebaak Collective and the Bhartiya Muslim Mahila Andolan (BMMA) also supported
Ms. Bano's plea that these practices should be held unconstitutional. They even
urged the court to declare that personal law was subject to the Fundamental
- The All-India Muslim Personal Law Board (AIMPLB) has argued that uncodified
Muslim personal law is not subject to constitutional judicial review and that
the Court did not have jurisdiction to entertain a constitutional challenge to
Muslim personal law as these are essential practices of the Islamic religion and
are protected under Article 25 of the Constitution.
- On 16th February 2017, Shayara Bano, the Union of India, various women's
rights bodies, and the All-India Muslim Personal Law Board (AIMPLB) were asked
by the court to introduce written submissions on the problems and issues of
Talaq - e - bidat, nikah-halala, and polygamy.
Contentions of the parties
- Whether the practice of Talaq - e - bidat (instantaneous Triple Talaq) an
essential practice in Muslim personal law and protected under Article 25 of the
- And whether this practice of Triple Talaq violates fundamental rights i.e.,
Articles 14,15,21, and 25 of the Indian constitution and is unconstitutional?
The parties to this case have argued on various aspects of the law and articles
of the Indian Constitution. These are the right to equality, the right to
freedom of religion, and the right to life and personal liberty.
Arguments from the side of Petitioner
Arguments from the side of the Respondents
- Shayara Bano's advocate Mr. Amith Chadha began by arguing that Triple Talaq is not a form of divorce recognized by The Muslim Personal Law (Shariat) Application Act, 1937. He also pointed out that several High Courts and Supreme Court have restricted this unilateral power of Muslim men to be able to divorce Muslim women and even criticized the practice of Triple Talaq as it does not have any Quranic sanction.
- He urged the court to "strike down the practice of Triple Talaq as it allows an un-codified power to Muslim men to divorce, violating Articles 14 and 15 of the Constitution."
- Next, Mr. Amith Chadha argued that "the practices challenged in this case are not essential practices of Islam as it is evident from legislations in other Islamic countries, that have prohibited such practices."
- Mr. Anand Grover, representing the Bharatiya Muslim Mahila Andolan (BMMA) also clarified that "Talaq itself is of three types: Talaq ahsan and Talaq hasan, both of which are approved and recognized by the Quran and Hadith while the third type that is Talaq-e-bidat, is neither recognized nor approved by the Quran nor the Hadith."
- Ms. Indira Jaising, Sr. Adv. who was representing the Intervenors, argued that "personal laws - whether codified or un-codified - regardless of the community, are subject to Article 13 of the Indian Constitution and therefore void to the extent that they violate fundamental rights."
- She also concluded by advancing the general proposition that "any divorce which is unilateral and without judicial oversight violates Articles 14, 15 and 21 of the Indian Constitution. Also, the general Islamic concept of marriage among Muslims is admittedly a contract it cannot be dissolved unilaterally."
- Mr. Anand Grover, Sr. Adv, started by pointing out that "the AIMPLB is a private body that isn't representative of the views of all Hanafi Muslims. He asserted that there are differences in the Hadith texts and read an interpretation of Hadith which prescribed that Triple Talaq should be staggered."
- Mr. Kapil Sibal, Sr. Advocate, representing the All India Muslim Personal Law
Board (AIMPL) began by emphasizing that the core underlying issue before the
court is that of patriarchy which pervades every religion and not the issue of
- Mr. Sibal referred to the Constituent Assembly Debates to argue that the
definition of law under Article 13 does not include personal laws. He suggested
that the explicit mention of personal laws in the Concurrent List (List III of
the Seventh Schedule) and its absence in Article 13 demonstrates the
Constitution makers' intention to exclude personal laws.
- Mr. Sibal then sought to place this case in a historical and social context.
He noted that it is important to protect minority rights in a Hindu majority
state. Most jurisdictions that passed legislation abolishing Triple Talaq have
Muslim majorities. Hence, India must be sensitive to the Muslim community's
minority status before legislation is proposed.
- Mr. Sibal responded that while the Quran is silent on Triple Talaq, there is
nothing in it that prohibits Triple Talaq. Moreover, petitioners' view that the
Quran alone is the source for understanding Talaq is incorrect as the Sharia is
based on the Quran, Hadith, and interpretations of scholars.
- Mr. Sibal concluded arguments by claiming that Muslim women are not
discriminated against by the Triple Talaq rule and may even benefit from
immediate relief from bad marriages. He proposed four options for a Muslim woman
to protect herself from a discriminatory use of the Triple Talaq: first, she may
register the marriage under the Special Marriage Act, 1954; second, she can
insert conditions into the Nikahnama to prohibit her husband from exercising a
Triple Talaq; thirdly, she delegates the right to Talaq to herself and finally,
insist on the payment of a high Mehr amount to deter the exercise of Triple
- He concluded arguments by emphasizing that the Hanafi school is a religious
denomination and that every denomination's right to practice religion is
protected under Article 26 of the Constitution.
- Mr. Goel argued that the question of assessing the constitutional validity of
Triple Talaq does not arise as the divorce is between two private individuals
and there is no state action involved.
- Moreover, since marriage is a private contract under Islamic Law, no
State legislation can change it.
- Mr. Giri, Sr. Advocate, cited verses from the Quran to argue that marriage
and divorce have sources in religious scriptures and thus are essential matters
of religion protected under Articles 25 and 26 of the Constitution.
- The SC established a 5-Judge Constitution Bench on March 30, 2017, to hear the case. J.S. Khehar, the Chief Justice, and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer formed the Bench. The Bench considered the case from May 11 to May 19, 2017, and the judgement was handed down on August 22 of that same year. The majority of the 3:2 vote determined that the Talaq
- e - bidat custom was "manifestly arbitrary" and unlawful. Justice Nazeer and Chief Justice Khehar dissented on the grounds that the Right to Religion protected Talaq
- e bidat and that Parliament should have drafted legislation to control the practice.
- Triple Talaq was declared unconstitutional under Article 14 r/w article 13(1) of the Indian Constitution. The Court determined that the Muslim Personal Law (Shariat) Application Act, 1937 had penalized the practice as a matter of personal law. The punishment for committing this crime is imprisonment for up to 3 years.
- The Court clarified that "an arbitrary action must include negation of equality" and found that the Triple Talaq's provision that "the marital tie can be broken capriciously with no attempt at reconciliation to preserve it" constitutes an arbitrary act that violates Article 14 of the Indian Constitution.
- The SC found that the practice of Triple Talaq or Talaq - e - bidat is not protected by the exception outlined in Article 25 since it is not an essential practice of Islam.
- The Court argued that even though the Hanafi School engages in it, doing so is wrong. Triple Talaq is against the fundamental principles of Islam, and since Shariah contradicts Quran, what is evil in theology cannot be good in legislation.
The point of discussion of this paper is to know about the realities relevant to
triple divorce in Muslims. The objective of this paper is to explain the real
meaning of Triple Talaq. It answers the query that what does the Sharia law say
about this issue and how does it safeguard the rights of women. Actually, there
is the wrong perception about Muslim women that they are deprived of their
rights especially under the system of Talaq. The paper at hand also figures out
the views of different sects on triple divorce. This precisely discusses the
relevant case laws. Also, it explores the legislation on triple divorce, enacted
in different states.
- What is Muslim Law?
- What is Quran?
- What is Talaq-e-Biddat?
- What were Supreme Court verdicts?
- Shayara Bano vs. Union of India and Ors. (2017).
- Does Three (3) consecutive announcements of Talaq amounts to One (1) Talaq?
- Is Talaq against the rights of Muslim women?
The landmark decision in Shayara Bano case is unquestionably a step toward
equality, and it has provided a foundation for future personal law and social
amendments. This decision in Shayara Bano vs. UOI and Ors also dealt with the
minority in a very viable manner, which is a step toward secularism.
Although the primary focus was not gendering justice, it will have significant
positive implications for advancing women's rights and gender equality in India.
It is expected that this judgement will be viewed objectively and will assist
Muslim women in living a better and more secure life as guaranteed by the law of
SIGNIFICANCE OF STUDY
The five-judge bench of the Supreme Court gave its decision in favor of Shayara
Bano and others. It declared the practice of Triple Talaq unconstitutional by a
3:2 majority and directed the legislature to take measures against it in order
to stop the abuse against women. The Court in this case emphasized that though
this practice of Triple Talaq is mostly followed by the Hanafi School, it is
While delivering the judgment, the Court opined that many other Muslim countries
in the world have already abolished this practice on the ground that it lacks
sanction from the Quran and was neither encouraged nor followed by the Prophet.
The Court held the practice to be violative of fundamental rights under Part III
of the Constitution.
To curb the practice and reduce the instances of Triple Talaq in the country,
the Parliament of India decided to make Triple Talaq a punishable activity and
passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 after the
judgment of the Court in 2017. Section 3 under Chapter 2 of the Act declares
Talaq-e-Biddat void and illegal. Section 4 describes the punishment that must be
awarded to the person who tries to divorce his wife through Talaq-e-biddat or
The punishment extends to 3 years of imprisonment along with a fine. The wife is
also entitled to receive the amount or allowance for herself and her children
from her husband as mentioned under Section 5 of the Act. Section 7 makes the
pronouncement of Triple Talaq a cognizable and compoundable offence wherein the
husband is not entitled to be released on bail unless the court is satisfied
that there are reasonable grounds to do so.
LITERATURE REVIEWConstitutional law vs. Personal Law:
- On the surface, the Court's decision was the appropriate one to make.
Still, most judges' methods appear different, which has led to a discussion
on how to view personal law in a secular nation like India. It raises the
issue of when it is appropriate for judges to render judgments regarding the
legality of an uncodified practice like Triple Talaq.
- Justice Khehar examines it entirely from the perspective of the
constitution, determining whether it can be upheld as legal under that
system rather than from the perspective of Islamic law. Justice Khehar
responded to the opposition's claim that personal law was not a
state-enacted law and that only state-enacted law is subject to fundamental
rights along similar lines. The main problem with the following argument is
how a behavior authorized and enacted by the State, even though it is
uncodified under personal law, does not fall under the purview of the
- Now that we have taken a closer look at Justice Nariman's argument, we
can see that he does believe that Triple Talaq is "law in force" as defined
by Article 13. With the very sound justification that since Talaq is granted
broad jurisdiction by Section 211 of the Muslim Personal Law (Shariat) Act
of 1937, it inevitably falls under the purview of state laws.
- Therefore, the obvious question in this situation is: Are any pertinent
fundamental rights-specifically, Articles 14 and 15 that cover the right to
equality�being violated, or may it be protected by a fundamental right like
the right to religion, as stated in Article 25?/
- Even though the practice of Triple Talaq has been declared
unconstitutional in our country and a punishable offence by virtue of the
Act of 2019, it cannot be said that the instances of divorce on the basis of
Triple Talaq have stopped completely. Somewhere in the rural and backward
areas where there is little knowledge about such a law existing in our
country, it is still practised and is unnoticed because these are not
reported by anyone, whether by the victim or someone else.
- There is a need to educate women about the law in existence and their
rights so that any such instance or case faced by women is reported to the
required authorities. When all Muslim women will be educated about their
rights and laws in force for their protection, we can expect some change in
society with respect to their positions and upliftment. They have to be
empowered so that they are able to take a stand for themselves firmly. This
is only possible when they are fully educated, financially independent and
- Apart from the laws for their protection, the government must take
initiatives for the education of women, especially in rural and backward
areas. It must facilitate their financial independence by securing jobs and
providing them with opportunities to rise.
The method adopted for the research is basically content analysis of the
available primary and secondary data.
Content analysis is a methodology in the cultural relativism and imperialism by
which text are studied as to authorship, authenticity, or meaning. Content
analysis is a summarizing, quantitative analysis of messages that relies on the
scientific method (including attention to objectivity, inter - subjectivity, a
priori design, reliability, validity, generalizability, replicability, and
hypothesis and is not limited as to the types of variables that may be measured
or the context in which the messages are created or presented.
In this research the methodology of content analysis is used for analyzing
internet data comprising of various articles, news articles, reports of various
institution etc. & books on the relevant topic to bring forth useful &
appropriate information as it is the doctrinal type of research. The study is
mainly based upon the primary data. Primary data was collected through survey
method. Questionnaire was used for collecting data. Questionnaire was developed
based on past experience of the researchers and review of literature on the
topic done by the researchers.
Undoubtedly, the significant ruling in the Shayara Bano case is a step toward
equality and has set the stage for upcoming social and personal legislation
changes. A step toward secularism, this ruling in the Shayara Bano case also
dealt with the minority.
It would significantly impact furthering women's rights and gender equality in
India, even though the main focus was not on gender justice. It is anticipated
that this decision would be seen objectively and help Muslim women live better,
safer lives as mandated by the law of the State.
Talaq-e-Biddat or Triple Talaq is that form in which marriage is broken in just
a few seconds and there is no going back and this right lies only with the
husband. If he realizes his mistake and wants to rectify it, it is the women who
have to face the atrocities of nikah halala. The present case is one of the
landmark judgments on personal law in the country.
It is definitely a great move towards equality and social amendments, especially
where they have been needed for a long time. It took many years for the Court to
realize that Triple Talaq is unconstitutional and bad for society. They should
now realize the need for a uniform civil court in the country. Triple Talaq is
just one such practice. There are a lot of such false practices prevailing in
the society in the name of religion.
It's time we keep a check on those practices as well and see whether they are
causing harm to society, and if so, then they should be banned. One of the best
ways to get rid of these is to have a 'UNIFORM CIVIL CODE''. A Uniform Civil
Code will not only keep a check on those but uproot some of the evil practices.
It will be an advantageous step towards the integrity of the nation.
There is a long debate about its establishment, but now it should be implemented
rather than just discussed. People have to understand that it will neither
create chaos nor is it a step to target any particular religion or community,
but it will bring harmony by way of common codified law where every religion,
its essential practices, and community will find an equal place. The sooner the
authorities and government realize this, the sooner the work will be done and
society will become a better place to live in.
The major impact is seen on women, whose lives are turned upside down in just a
few seconds. This controversial custom has shockingly left Muslim women prone to
abuse and in a morbid state, especially harming their socio-economic status as
most of the women are not financially strong. Husbands are at ease as they can
initiate it whenever they wish to do so, and women, on the other hand, do not
have a say in this.
Shayara Bano is one such woman who was the victim of this instantaneous Talaq.
She, unlike other women, did not remain silent and fought back due to which
history was created not only in Muslim personal law but also in the way the
Constitution is related to the personal laws in India.Written By: Bhaswat Prakash
, Ajeenkya DY Patil University, Pune (B.A.LL.B)