Shayara Bano case or Triple Talaq case led to a landmark judgement which banned illegal practice of Muslim males to announce divorce by affirming Talaq three times. This kind of Talaq system is prescribed in Sharia Act without the intervention of state. For Triple Talaq to perform, the male and female need not be present at a place , it is a system where Talaq can be announced via any medium whether written, oral, or may be any electronic medium.

Title Of The Case: Shayara Bano Vs. Union of India And Ors. 2017
Citation: (2017) 9 SCC 1
Writ Petition (C) No. 118 of 2016
Bench Strength

• Hon'ble Chief Justice Jagdish Singh Khehar
• Hon'ble Justice Kurian Joseph
• Hon'ble Justice Rohinton Fali Nariman
• Hon'ble Justice Uday Umesh Lalit
• Hon'ble Justice S. Abdul Nazeer

Divorce In Islamic Religion Is Compartmentalized Into Three Leagues:

1. Dissolution of marriage or Talaq at the instance of husband.
2. Separation at instance of wife is another way known as Khula.
3. Mubarat is a way of fractionalization by mutual consent.

Divorce at instance of husband is also categorised into three generas that are Talaq-e-ahsan, Talaq-e-hasan, and Talaq-E-Biddat. Talaq-E-Biddat is the one which is not recognised by Quran and by hadith. And this practice led to the controversy.

Talaq-e-ahsan is single pronouncement of divorce by husband after a period of continence. And the continence period is defined as iddat. During the period of iddat if the couples decide to resume the marriage then the divorce is treated as have been revoked.

Talaq-e-hasan is a way wherein husband pronounces Talaq three times in successive three Tuhr periods. Tuhr is a period during which women is not menstruating.

Talaq-E-Biddat is different from others in the way of pronouncing the Talaq. This type of practice includes announcement of Talaq three times at any moment. It is not necessary that both parties are present at same place.

Shayarana Bano was married to Rizwan Ahmad in 2001 as per Shariat, at Allahabad. According to petitioners, her husband after certain period of time starts demanding for additional dowry and started making unreasonable demands for a car and cash. When petitioner denied, in response she was badly tortured and physically abused by Respondent and his family.

She was also not provided with the food and locked up in a room for several days. Respondent's family members administered her with certain medicines which caused her memory to fade. She was also tried to kill. Petitioner moved back to her parent home after 2015.

In the same year petitioner added that her husband in presence of Mohammed Yaseen and Ayaaz Ahmad gave her Talaq by affirming Talaq, Talaq, Talaq and pronounced that in this way I'm taking divorce from you to being my wife. He added that now you are free to use your life the way you want it to be.

Petitioner filed a writ petition before the Supreme Court to look into the case and provide justice for herself. Petitioner in her writ petition filed that the divorce which irreversibly, surprisingly, and individually ends the tie of matrimony under Section 2 of Muslim Personal Law Application Act, 1937 be declared unconstitutional.

She also stated during course of hearing that the Talaq-E-Biddat performed by her husband is not a part of Shariat hence be made not valid. She also stated that Talaq-E-Biddat is infringing her fundamental rights under article 14, 15, and 21.

Facts Of The Case

• Shayara Bano was married to Rizwan on 11.04.2001 and after few years Shayara gave birth to two children Irfan and Umaira. After 15 years of marriage Shayara's husband announces Triple Talaq without her consent.
• She was survivor of domestic violence by her husband's family for dowry.
• A writ petition was filed by victim Shayara Bano in the apex court. It states that the fundamental rights of petitioner have been infringed under article 14, 15, 21 and 25. Petitioner also stated that the instance practice of divorce cannot be treated as rule of decision under Shariat act.
• Petitioner's side was supported by Union of India (UOI), Bhartiya Muslim Mahila Andolan and Bebaak Collective and pointed that this worst practice needs to be held unconstitutional.
• Apex court on February 16, 2017 asked Shayara Bano, All India Muslim Personal Law Board, Union of India and women's rights organizations to produce a written submission on the challenges and consequences related to Polygamy, Talaq-E-Biddat, and Nikah Halala.
• All India Muslim Personal Law Board expresses that the Islamic Personal Laws are secured under article 25 and the apex court doesnot have the jurisdiction of judicial discretion, to entertain a matter of faith and religion.

Point Of Law Involved:

1. Whether the Practice of Talaq-E-Biddat is constitutional or unconstitutional?
2. Whether the Talaq-E-Biddat or Triple Talaq is essential practice of Islamic religion?
3. Does the practice of Triple Talaq, approved by hadits?
4. Whether Triple Talaq or Talaq-E-Biddat is protected under article 25 of Constitution of India?

Rules Of Law

• Art-14 of Indian constitution:
  This right is in favour of equality. The state shall not deny to any person equality before the law or the equal protection of law within the territory of India.
   
• Art-15 of Indian constitution:
  This right prohibit the discrimination of any citizen only on the basis of race, place of birth, sex, caste or religion or any of them.
   
• Art-21 of Indian constitution
  This right provides an individual with right to life or personal liberty except the procedure established by law.
   
• Art-25(1) of Indian constitution:
  This right provides freedom to any person to freely profess, practice, and propagate their religion.

Argument Advanced

• On Behalf Of Petitioner:
  
  • Mr. Amit Chadha, Sr.Adv. argued that the Triple Talaq is not a proper form of divorce which is being recognised under The Muslim Personal Law Application Act, 1937.
  • He added further that most of the High Courts and Supreme Courts of Islamic Countries have restricted the unilateral power of Muslim men to dissolve a marriage from a women and also condemned the practice as it doesnot have Quranic Sanction.
  • Mr. Chadha urged Apex Court to declare Triple Talaq as unconstitutional because the uncodified law of Islamic religion is giving immense power to Muslim males for divorce, which is violating Article 14 and 15.
  • He argued that many a Islamic countries have prohibited this kind of practices hence it is clear that the practice of Talaq-E-Biddat is not an essential practice.
  • Mr. Chadha advocated that the right to religion which is provided in article 25 of Indian Constitution is binded to other provisions of article 14, 15 and 21 of Part III; hence the challenged practice is not protected under article 25.
  • Mr. Anand Grover, Sr. Adv. stated that Triple Talaq is neither recognised by Quran nor by Hadith. He pleaded that in Indian Sharia Law, Talaq does not include Talaq-E-Biddat.
  • Ms.Indira Jaising, Sr. Adv. advocated that marriage in Islamic religion is a contract, it cannot be shaken unilaterally. If done so it violates the Contract Act of 1872.
    
     
• On Behalf Of Respondent:
  
  • Senior Advocate Mr. Kapil Sibal while representing AIMPL Board states that the Article 13 of Indian Constitution does not include personal law. He also stated that the personal laws are included in Concurrent list and are absent in article 13 clearly defines the intention of constitution makers' to exclude personal laws.
  • He added that in case of Triple Talaq there is nothing which is written in favour of Talaq-E-Biddat in Quran but it is also true that there is nothing which prohibits it to do so.
  • Mr Sibal argued that the issue before the court is not about Triple Talaq but it is about the patriarchy which pervades in every religion.
  • He concluded by stating that there is nothing in Triple Talaq which discriminates Muslim women, moreover it provide them with immediate relief from bad marriages. He also put forward four options for Muslim women from protecting herself from discriminatory functioning of Triple Talaq.
    
    Those four choices may be:
    
    • The women may register her marriage under special marriage act, 1954.
    • She can also delegate the power of giving divorce to herself.
    • She can also insert certain conditions into the Nikahnama for providing prohibition to her husband from exercising Talaq-E-Biddat.
    • She can also force her husband for high payment of Mehr to deter Triple Talaq.
       
  • Mr.Goel advocated that the issue of constitutional validity of Triple Talaq cannot be raised because the divorce is between two private parties and there is no state involved.
     

Judgement Of The Case

• The Hon'ble Supreme Court of India announced Triple Talaq Judgement on 22nd August 2017 with the majority of 3:2. The court declared instantaneous divorce or Triple Talaq to be unconstitutional and found that this practice curbs the freedom of women; also it is something which is creating gender inequality in the country.
   
• The Supreme Court added that The Muslim Personal Application Act, 1937 is not binding in case of Talaq-E-Biddat because Article 13(1) states that the laws passed before the commencement of Constitution are null and void if they are infringing the fundamental rights that are stated in Part III of Constitution.
   
• Court found that Talaq-E-Biddat is not an essential practice in Islamic religion hence it is not protected in the Article 25 of Constitution of India.
   
• Justice UU Lalit, Justice Rohinton Nariman, and Justice Kurian Joseph formed the majority and stated that the practice of Talaq-E-Biddat is inconsistent and hence unconstitutional. Also JJ Joseph added that erroneous practice of Talaq is against the Quran, hence it lacks the legal sanction.
   
• JJ Joseph quoted that "what is held evil in sacred Quran cannot be good in Shariat and, what is bad in theology is bad in law as well".
   

Conclusion
Judgement of Shayara Bano was a landmark judgement that made the life of Muslim womens to be in ease from certain kinds of illegal and unacceptable practices that not only infringes the right but also generates gender inequality.

In Shayara Bano vs Union of India the Supreme Court declared the practice of Triple Talaq or Talaq-E-Biddat to be unconstitutional that violates the fundamental rights of women, by the majority of 3:2. In 2019 the parliament of India passed a Muslim Women (Protection of Right on Marriage) Bill, 2019.

This bill declares the Triple Talaq illegal and criminalises the practitioner and contains certain provisions for the protection of women. Firstly it punishes a man who declares Triple Talaq and put him behind the bars for a tenure maximum of three years and he May fined also.