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 by women.

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 for Divorce.

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 Rizwan Ahmed
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:

1. 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.
2. In 2016, she had been unilaterally divorced through instantaneous Triple Talaq.
    
3. A writ petition was then filed by her before the Supreme Court.
    
4. 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."
    
5. 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 Rights.
    
6. 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.
    
7. 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.

Issues of the Case:

1. Whether the practice of Talaq - e - bidat (instantaneous Triple Talaq) an essential practice in Muslim personal law and protected under Article 25 of the Indian Constitution?
2. 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?

Contentions of the parties
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

1. 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.
    
2. 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."
    
3. 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."
    
4. 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."
    
5. 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."
    
6. 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."
    
7. 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."

Arguments from the side of the Respondents

1. 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 Triple Talaq
    
2. 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.
    
3. 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.
    
4. 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.
    
5. 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 Talaq.
    
6. 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.
    
7. 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.
    
8. Moreover, since marriage is a private contract under Islamic Law, no State legislation can change it.
    
9. 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.

JUDGMENT

1. 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.
    
2. 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.
    
3. 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.
    
4. 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.
    
5. 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.

RESEARCH OBJECTIVE

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.

RESEARCH QUESTIONS

1. What is Muslim Law?
2. What is Quran?
3. What is Talaq-e-Biddat?
4. What were Supreme Court verdicts?
5. Shayara Bano vs. Union of India and Ors. (2017).
6. Does Three (3) consecutive announcements of Talaq amounts to One (1) Talaq?
7. Is Talaq against the rights of Muslim women?

RESEARCH HYPOTHESIS
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 the land.

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 sinful.

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 Triple Talaq.

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 REVIEW
Constitutional law vs. Personal Law:

1. 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.
    
2. 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 sovereign's law.
    
3. 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.
4. 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?/
    
5. 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.
    
6. 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 confident.
    
7. 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.

RESEARCH METHODOLOGY
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.

CONCLUSION
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)