Analysis on Shayara Bano vs Union of India and others, 2016

Background-

Rizwan Ahmad married Shayara Bano on 11 April 2001 as per Shariat at Allahabad. The marital relationship resulted in two children. On 10 October 2015 Shayara Bano was divorced by her husband Rizwan Ahmad wherein he divorced her by the practice of talaq-e-bidet. After which Shayara Bano filed a writ petition to the honorable Supreme Court challenging the existence of ‘talaq-e-biddat’, Nikkah halala, and Polygamy.
In 2017, Supreme Court set up 5 judges’ bench to pronounce its decision on the matter of existing caselaw.

Parties to the case-
Petitioner- Shayara Bano
Respondent- Rizwan Ahmad, Union of India, Ministry of law and justice, Ministry of Women and Child Development, Ministry of Minority Affairs, National Commission for Women, All India Muslim Personal Law Board.

Issue-
1. Does‘talaq-e-biddat’ or Instant Triple Talaq come under the ambit of essential religious Practice of Islam?
2. Whether the practice of ‘talaq-e-biddat’ violates Fundamental Rights?

Observations-
The petitioner argued by saying that ‘talaq-e-biddat’ is violative of articles 14,15,21 and 25 of the Indian constitution and is not valid as it is not a part of Muslim personal law. Moreover, it gives no chance for marriage to reconcile and could be pronounced in the absence of the wife and even without her knowledge. It observed that not only India but many other Muslim majoritarian countries have forbidden the practice of Instant Triple Talaq. Hence cannot be considered essential of the Muslim religion. Also argued by saying ‘talaq-e-biddat’ cannot be protected under Article 25(1),26(b), and 29 of the constitution. Therefore, ‘…such a divorce which abruptly, unilaterally, and irrevocably terminates the ties of matrimony, purportedly under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 be declared unconstitutional.
On the other hand, Rizwan Ahmed said that Shayara Bano left her matrimonial home to live at her parental home, despite many requests denied to return, and was informed by her father that she was not inclined to live with him. Hence he filed the divorce as he thought that his wife Shayara Bano was not ready for reconciliation. Also argued by saying that the writ petition filed is not justiciable under art 32 of the Indian constitution. Hence the case should be dismissed. Supporting this argument AIMPLB argued by saying that ‘talaq-e-biddat’ is an essential practice under Shariat and is not subject to judicial review as protected under article 25 of the Indian constitution.

Judgment-
CJI Jagdish Khehar and J.Abdul Nazeer concluded by saying that Instant Triple talaq or ‘talaq-e-biddat’ is part of Muslim law and hence protected under article 25 which guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. Moreover, the question of validity or ban of this practice is not within the purview of the Supreme Court but the parliament. Hence, the court of law should put a stay of six months on this practice and in these six months, the parliament should decide on the validity or ban on this practice.
J. Rohinton Nariman and J U.U Lalit said that all the laws before and after the enactment of the constitution should be consistent with the fundamental right as stated under article 13 if not so will be declared void under the law. Instant triple talaq was observed not to be violative of Article 13 but that of article 14,15,21 and 25. Being arbitrary in nature and violative of the rights of women Supreme Court by all means has the power to declare the practice invalid.
Justice Kurian Joseph held the practice lacks in pre-requisites: arbitration, negotiation, and conciliation like other two practices of divorce, namely ‘talaq-a-ahsan’ and ‘talaq-a-hasan’.Hence, is not essential and is unislamic.
Finally, on 22 August 2017, the five judges’ bench of the Supreme Court pronounced their decision in the triple talaq case, declaring that the practice was unconstitutional by a 3:2 majority. And in the favor of the petitioner directed the Parliament to take legislative measures against the practice of triple talaq.

Conclusion-
Law can never be static it always keeps on changing with time. What might be right in the past will not be the same in the present or the future. As that to take an example is sati pratha, child marriage, dowry, etc which was very prominent and customary in the past but was then declared to be inhumane and discriminatory in nature. The same goes with that of instant triple talaq practice it was observed to be discriminatory towards women and was being misused by many men as there was no attempt to reconciliation to save the marriage. In the modern progressive society like today where justice is served based on equity, and good conscience practices like this have no place to live. This judgment empowered many women and was looked upon as an advancement towards the constitutional values of equality, dignity, and secularism.

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