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.

Issues:
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:

1. Is Talaq-e-biddat Islamic in nature?
2. 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?
3. Is it protected by Article 25 of the Constitution?

Issue 1
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 petitioner’s 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.

Critical Analysis
Kurian J’s judgment places an overwhelming reliance on the petitioner’s 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, i.e., divorce may be pronounced twice. He reasons that since a person cannot visit someone’s 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 need not 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.

Issue 2
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:

1. 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.
    
2. 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.

Critical Analysis
Nariman J. bases his judgment on the interpretation of S.2 of the 1937 Act[7] 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 follows:
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 differ.

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.

Issue 3
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.

Conclusion:
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 men’s 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 socio-cultural context.

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 oppression.

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 ‘women rights’ 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.

Written By:

1. Yash Gupta - B.A. LLb. Hons. at National Law University and Judicial Academy, Assam &
2. Tanya Sinha - B.A. LLb. Hons. at National Law University and Judicial Academy, Assam