This case analysis is written by Raman Verma during his internship with Le Droit India.
Court: The Supreme Court of India
Date of judgment: 22nd August 2017
Bench : Justice K.M. Joseph , Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, and , Justice Jagdish Singh Khehar constituted the Bench.
Facts:
Shayara Bano, a Muslim women, was married to Rizwan Ahmed for about all most 15 years. But Rizwan divorced her by way of triple talaq (talaq-e-biddat) without any reason in 2016.
Therefore she filed a writ petition in Supreme Court challenging the constitutional validity of the talaq along with the practices of polygamy as it infringes the fundamental rights of women under Article 14,15,21& 25 of the Indian constitution.
The petition stated that practice of triple talaq, Nikah halala and polygamy in Muslim law were illegal and unconstitutional. Further it violets the the several fundamental rights.
BMMA ( Bebaak Collective and the Bhartiya Muslim Mahila Andolan ) is an organization which supports the women’s rights who along with the Union of India also supported the Shayara Bano and stated that such practices are morally wrong as well as unconstitutional and violets Fundamental rights.
AIMPLB ( All-India Muslim Personal Law Board ) argued that muslin law is not subject to the constitutional judicial review and no court has the jurisdiction to entertain the Muslim personal law as these are essential practices of Islamic religion and are protected under Article 25 of the constitution.
Therefore the BMMA ( Bebaak Collective and the Bhartiya Muslim Mahila Andolan ) , Union of India and ( All-India Muslim Personal Law Board ) AIMPLB were asked to submitt their written submissions on the problem and issues of the Polygamy, Nikah-halala and alaq-e-bidat on 16 Feb, 2017.
The Supreme court accepted the petition of Shyara Bano and formed a five judge constitutional bench on 30th March 2017. The Case First hearing was to be held on 11 May, 2017. Therefor on 22nd August ,2017, the case was decided with the majority bench of 3:2 that triple talaq is unconstitutional.
Issues:
- Is the practice of talaq-e-biddat an essential practice in Muslim personal law?
- Is Triple Talaq protected under Article 25 of the Indian Constitution?
- Does the triple talaq infringes the fundamental rights guaranteed under the Constitution and is unconstitutional?
Judgment of the Court :
The Supreme court holds the judgment with the majority of 3:2 in which the Triple Talaq is said to be unconstitutional as it violates the articles 14,15 and 21. Further stated that the Triple talaq is not a essential practice of Islam and is not protected under Article 25. The court addresses The Union of India to take a appropriate legislative measures and to protect the rights of Muslim women.
Delivered by the Majority (Justice Nariman, Justice Lalit, and Justice Kurian Joseph):
A. Violation of Fundamental Rights
Article 14 and Arbitrariness : The practice of Triple Talaq gives unfettered power to men to divorce without cause or notice, which arbitrarily discriminates against Muslim women. Any law or practice that is arbitrary is inherently unconstitutional under Article 14. Thus, the practice violates the principle of equality before the law.
Article 21 – Right to Dignity: Instant d
ivorce without providing a woman an opportunity for reconciliation or explanation strips her of dignity and security, thus violating Article 21. Marriage, being a fundamental aspect of a person’s life, cannot be arbitrarily dissolved in a manner that affects the dignity of one party.
Article 15 – Discrimination on Grounds of Gender : Triple Talaq discriminates only against women. No parallel practice gives women a similar right to instant divorce. Thus, the practice stands in violation of Article 15, which prohibits gender-based discrimination.
B. Not an Essential Practice of Islam
The Court examined the Islamic sources, including the Quran and Hadith, and found that Triple Talaq is neither essential to the practice of Islam nor sanctioned by the Quran. The Quran emphasizes deliberation and reconciliation in matters of divorce, and several Islamic countries, including Pakistan, Indonesia, and Bangladesh, have abolished this practice.
Justice Kurian Joseph, in his separate opinion, stated that what is sinful under religion cannot be protected by law. Hence, Triple Talaq does not deserve protection under Article 25, which guarantees the right to religious freedom.
3. Minority Opinion (CJI Khehar and Justice Abdul Nazeer) :
The minority opined that though the practice of Triple Talaq is regressive, it forms part of Muslim personal law, which is protected under Article 25. Therefore, the judiciary should not interfere, and it is the Parliament’s prerogative to reform the law through legislation.
CJI Khehar, in his dissenting opinion, suggested staying the practice for six months, allowing Parliament time to enact a law banning Triple Talaq.
The Shyara bano judgment is the milestone set in the Indian judiciary and towards the the Personal laws in India. The decision lays down the change in the personal law. The divorce in musliam law violets the fundamental rights like equality, dignity and individuals rights. It took many years for the courts to consider the triple talaq is against the constitution. But the Supreme court of India make it as Unconstitutional, in the judgment of shayar bano case. Justice Nariman, Lalit, Joseph. Are the judges who consider the triple talaq Unconstitutional. This was the step towards the secularism which ensures that individual dignity is more important then over personal law. The case also has build a strong foundation to have Uniform Civil Code. The Uniform Civil Code will keep a check on the on the social evil practices in India.
