Shayara Bano v. Union of India and Ors
is a landmark case dealing with
Muslim family law in India decided by the Indian Supreme Court. This is not the
first time that the validity of Triple Talaq has been challenged in the Courts
of law. The present judgment considers a plethora of cases where this issue has
been previously highlighted as well. However, never before, has the
constitutional validity of Triple Talaq been challenged before a Constitution
Bench comprising of 5 judges of the Supreme Court.
What is particularly fascinating is the dissent in reasoning adopted by the
majority in spite of the final conclusion being the same and the in-depth
analysis by the minority judges. One may say that even though the bench has a
clear majority in concluding Triple Talaq to be unconstitutional, the Bench is
clearly divided over its reasoning in coming to this conclusion.
Another novel aspect of this case was that the minority judgment injuncted the
enjoyment of Art. 25 under Art. 142 of the Constitution in the interest of
justice. This suggests that although the Bench was divided on the point of law,
it was quite determined to end the archaic and abominable practice which even
Islam looks down upon, even though the extent of reform this judgment will bring
about is in itself a question mark.
Facts Of The Case
Rizwan Ahmad (Husband) pronounced Talaq, Talaq, Talaq in the presence of two
witnesses and delivered Talaq nama dated 10-10-2015 to Shayara Bano (wife).
The wife challenged the same, praying for a writ to be issued by the Supreme
Court declaring the divorce as void ab initio on the grounds that it violated
her fundamental rights. As a consequence, constitutional validity of Triple Talaq was called into question before a Constitution bench of the Supreme Court
comprising of 5 judges.
There are 3 Judgments on the case (Minority Judgments, of CJI Khehar and J.
Nazeer, written by CJI Khehar; two Majority Judgments, one written by Kurian J.
and another written by Nariman J. on behalf of himself and Lalit J). The index
page systematically lays down the issues in the case, but for the sake of
brevity and better understanding we shall merge the issues and reduce them down
to the following:
- Is Talaq-e-biddat 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?
Talaq-e-biddat is an irreversible form of pronouncement of Talaq or divorce
either by pronouncing it thrice in one go or by a definitive pronouncement viz I Talaq you irrevocably. A distinctive feature of this form of Talaq is that
it is effective immediately and is irrevocable. Moreover, Triple Talaq can only
be pronounced by a husband against his wife and not vice versa.
Islamic law has four sources, namely, The Quran, Hadith, Ijma and Qiyas.
According to the learned author A.A. Fyzee, the Quran, being the word of God is
the fundamental source of law; supplementary to the same is Hadith which are the
traditions of the prophet; the remaining two are not relevant. The major point
of controversy arises since there is no mention of Triple Talaq in the Quran and
it is sought to be justified by Hadiths only.
The Quran frowns on the practice of Talaq but it frowns more on irrevocable and
capricious form of divorce where the husband is not bound to give a reason for
the divorce and which is characterised by the absence of a reconciliation period
for the couple.
However, a similar line of reasoning is made to justify the validity of Triple
Talaq. The respondents have argued that the Quran does not mention any form of Talaq and
therefore, if the logic behind petitionerís argument is to be followed then all
forms of divorce will have to be declared unislamic which will render the
married couples remediless in case of marital disputes.
Kurian Jís judgment places an overwhelming reliance on the petitionerís argument
in concluding that Triple Talaq is unislamic. This is particularly interesting
because it does not dwell upon the constitutionality of the Triple Talaq, but
rather focuses only upon whether it is a part of Islam or not. One may argue
that such a question is for the Quranic experts to deliberate upon and not a
legal expert, however, Kurian J. does attempt to justify his stand by citing
judgments in Shamim Ara, Masroor Ahmed and Jiauddin Khan v. Anwara Begum by
Nazarul Islam J.
Without repeating the text of the above-mentioned judgments, an attempt is made
to answer the question using non-judicial sources.
Maulana Usmani, in tracing the origins of Triple Talaq in his book focuses on
verse 2:229-30 of the Quran which mentions the term, Al-talaqu marratan
divorce may be pronounced twice. He reasons that since a person cannot visit
someoneís house twice unless there has been some time gap between two visits; in
the same way the word twice cannot be interpreted to mean in quick succession.
Overwhelming reliance on the Shamim Ara judgment is in my opinion illogical.
Despite the judgment being cited by several Courts to be the law of the land and
in spite of ignoring the fact that the relevant part of judgment forms obiter
and not the ratio, the reasoning used in the Shamim Ara judgment can be detached
from the conclusion that Triple Talaq is unconstitutional.
The reasoning and conclusion in Shamim Ara, as also quoted in this judgment,
conveys that every Talaq must be reasonable and be preceded by attempts at
reconciliation. The phrase attempt at reconciliation
necessarily mean that the attempt has to be between the two pronouncements of Talaq,
it can also be before pronouncement of Talaq for the first time.
Moreover, if one is to read the Quranic texts into the judgment, it is the
caprice of the husband which is condemned by prophet, whereas, what the present
judgment enforces is following of a compulsory iddat period by the parties
before effectuating the divorce. Therefore, in my opinion, the reasoning would
have better served the conclusion had it placed its reliance on direct
interpretation of the Quran by Muslim scholars instead of placing reliance on
the above judgment and declaring it to be the law of the land.
Coming to the other majority Judgment where Nariman J. writes Triple Talaq to be
unconstitutional on the basis of arbitrability, the few deductions we can make
from his judgment are:
- By focusing on arbitrability of law and not gender equality under Art.
15, as a basis for declaring Triple Talaq to be unconstitutional, he tactfully
swings the discussion away from the concern that Talaq, as an instrument, is
available only for males and not for females and steers clear from the
difficulty of also questioning the other two forms of Talaq. This allowed him to
only focus on Triple Talaq as distinguished from other forms of Talaq.
- By holding the Muslim Personal Law (Shariat) Application Act, 1937 to be
a statutory regulation of Muslim divorce, he side-steps the reconsideration of Narasu
Appa Mali judgment of Bombay High Court, which had also been subsequently
re-affirmed by subsequent Supreme Court judgments.
Nariman J. bases his judgment on the interpretation of S.2 of the 1937 Act by
reiterating the approach that must be taken to interpret a Non-obstante
clause, laid down in Aswini Kumar Ghose v. Aurobindo Bose
1953 SCR 1 as
It should first be ascertained what the enacting part of the section provides
on a fair construction of the words used according to their natural and ordinary
meaning, and the non obstante clause is to be understood as operating to set
aside as no longer valid anything contained in relevant existing laws which is
inconsistent with the new enactment.
Applying this rule to the section, only those customs and usages which are
contrary to Shariat are invalidated; whereas, other such customs and usages
which are not inconsistent with Shariat and neither are part of Shariat are
still valid. A bare use of this section does not provide us with enough evidence
to conclude either way. This where the opinions of Nariman J. and CJI Khehar
While Nariman J. puts onus on the Objects of the Act which mention that
Muslim Personal Law should be made applicable all over the country, CJI Khehar
puts emphasis on the legislative debates to understand the intendment behind the
Act. Therefore, in conclusion, it is submitted that it was the discrepancy
between the drafting of the Objects of the Act that led to such a varied and
contradicting conclusion by the judges.
A seemingly less popular but an enormous impact of the judgment of Nariman J.
will be that, his reasoning has exposed the entire Muslim Personal Law to be
challengeable under Part III of the Constitution. This may open a completely new
door to litigation against the regressive and oppressive practices continuing
under the shelter of Muslim Personal Law as such practices will have to satisfy
Part III, now.
The answer to this question will be determined by the essentiality test. The
essentiality test decides whether a particular practice is an integral part of a
religion or not. Both the minority and the majority judgments dwell on this
issue and rely on different judgments to reach their conclusions. Relying upon Sardar
Syedna Taher Saifuddin Saheb case 1962 AIR 853, CJI Khehar, quotes that whether
a practice is essential or not must be decided from the view of the members of
that community. Nariman J., in quoting, Commissioner of Police v. Acharya
Jagdishwarananda Avadhuta 2004
(12) SCC 770, states that an essential practice
is the practice on which core beliefs of the religion are founded; a cornerstone
upon which the superstructure of the religion is built, without which the
fundamental character of the religion would change. It is a permanent and
essential part of the religion and cannot be subtracted or added later.
If the essentiality test as per Nariman J. is to be followed, we find no
difficulty in declaring Triple Talaq to be outside the ambit of Article 25.
However, following the test laid down by CJI Khehar, we come to question
whether Triple Talaq is regarded as an essential part by the Islamic community
or not. This question can be answered in the negative, since Islam consists of
many communities, a lot of which do not follow Triple Talaq as a practice.
However, if this test is to be repeated in the context of India, where a
substantial part of Islamic community are Hanafi Muslims, one must ask in the
interest of spirit of the section that whether the Hanafi community (which is
majorly interested in the outcome of this case) considers Triple Talaq to be an
essential part of the religion or not. In light of submissions before the Court
(supra) and the discussion following, this question, too, is answered in the
negative. When the respondents themselves submit that such a practice is
considered to be sinful even by the Hanafi community and AMPLB has also passed
directions curbing such practice, it will be absurd to say that what is sinful
as per a community is also essential according to them.
The debate for its ban witnessed numerous opinions. The All India Muslim
Personal Board has opposed the ban and called it government interference with
the Muslim personal laws. Politicians from the Bharatiya Janata Party have ruled
that it is a way for Muslim men to satisfy their lust and so are vociferously
opposing the Uniform Civil Code ideology. Triple TALAAQ has been declared
illegal in theocratic states such as Pakistan, Bangladesh, and Turkey.
Counsel Amit Singh Chadha for petitioner Shayra Bano has voiced opinion saying that
Muslim menís absolute right to triple talaq making women to comply with the
provisions of Dissolution of Muslim marriages Act, 1939 is very unjust as they
have no legal recourse and cannot question it which in fact restricts their
right. If rightly observed then it can be said that triple talaq is available
only to the husband and not the wife and is against Article 14 (Right to
Equality) of the constitution.
Also, Article 15 prohibits discrimination on the
grounds of religion, caste, race, sex and place of birth hence laws have to be
made to improve the situation of women and not deprive them. The Quran teaches
to respect women and to not abandon her without any reason, if a spouse gives
divorce without any logical or rational reason then it violates the rights of
the woman as she does not know why divorce has been given and also deprives her
right on children and matrimonial house.
In view of Article 21 this is totally
unconstitutional and arbitrary. Article 25(1) states freedom of religion to
every citizen to practice and profess it. Muslim marriage and divorce are
governed by Muslim personal laws and it is nowhere mentioned in the Quran that
talaq-ul-biddat i.e. triple talaq needs to be practiced.
The question remains that whether declaring the practice of triple talaq
unconstitutional would ameliorate the condition of Muslim women more than the
invalidation has done. Further such a move would pit the rights of a Muslim
woman against her social and cultural believes. It is important to understand
that identity subversion is a very complex phenomenon. The problem with identity
politics is that it does not transcendent difference but is rather shaped by the
very difference. Drawing upon the post-modern scholarship the subjectivity of
the Muslim women has to be understood to be constructed within the same
For example, pious Islamic women may contest patriarchal
regimes of Quaranic interpretation home, while at the same time articulating a
sort of global solidarity.31 It has to be understood that the identity of a
Muslim woman is intrinsically linked to her Muslim-ness and cannot be divested
from it. Therefore the law reforms cannot take into account the linear narrative
of victimisation through the patriarchal Muslim community but rather also has to
provide space for assertion of multilayered identities like these.
Here we stand
confronted by some of the most intractable problems of the conflict of rights
where self--chosen sedimentation of identity within a religious tradition is at
odds with forms of universalistic modes of de-traditionalisation of the politics
of difference demanding gender equality and justice.32
Here comes to the recue
the conceptualization of inter-sectionality were we can better acknowledge and
ground the difference among us and negotiate the means by which these
differences will find expression in constructing group politics.33 So basically
in case of Muslim women article 14, 15 or 21 cannot be seen to give a universal
definition of equality or life applicable to all women. The conception of
equality must also be informed by the difference in experiences of the women. It
has to be understood that neither human rights are universal nor apolitical
infact they can sometime, though unconsciously, become the political tool of
Therefore the idea of equality which pitches the two identities
which she is made from, against each other can never be a feminist achievement.
It is a big success for feminist politics that now even the Muslim community is
recognizing the Shamim Ara judgment and hence the whole community is
acknowledging the invalidation of arbitrary talaq.
However even when gender concerns of the marginalized women hit the headlines,
they do so primarily to strengthen the prevailing stereotypical biases against
the community at large.34Hence Ďwomen rightsí is a multifaceted issue which is
embedded in broader political processes and consequently requires a complex
response. Such response has to engender in a communally vitiated environment to
actually have an impact on the lives of Muslim women.
It only the legislature which can create a law not the court. The courts do
not legislate and whatever maybe the personel view of the judge, he cannot
create or amend any law and he must maintain judicial restraint.
- Yash Gupta - B.A. LLb. Hons. at National Law University and Judicial
Academy, Assam &
- Tanya Sinha - B.A. LLb. Hons. at National Law University and Judicial