CASE COMMENT ON SHAYARA BANO CASE

Shayara Bano v. Union of India and others, writ petition (C) No. 118 of 2016

Court: Hon’ble Supreme Court of India.
Bench: CJI Jagdish Singh, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Lalit, Justice Abdul Nazeer.
Petitioner: Shayara Bano
Respondent:
• Rizwan Ahmed

• 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

INTRODUCTION:

Triple talaq is the practice under which a Muslim man can divorce his wife by uttering “talaq” three times. It is commonly seen among India’s Muslim community, majority of whom follow the Hanafi Islamic School of thought. This mode of divorce is not universal among Muslims across the globe, as many other Islamic schools of thought prefer the divorce to be deferred, in many cases over a period of three months.
With the advent of technology, the concept of triple talaq became easier to execute. There were several cases reported about husbands sending messages or voice notes or even pictures over snapchat to utter talaq and divorce their wives. Before the Shayara Bano judgment, several cases were brought before the courts to solve this matter. The right of such a divorce was without any reasonable grounds and was vested only with the husband which made the wives silent victims. Thus, on these grounds, the constitutionality of such a practice in India was challenged.
The judgment in Shayara Bano vs Union Of India And Ors., on contrary to common belief, does not change the legal position of Instant Triple Talaq that existed before, but rather creates
confusion on the constitutional status of personal law, and misses a great opportunity to elaborate on the constitutional vision of justice for women from minority religious groups. The Supreme Court’s judgment in the present case has been described by many commentators as the Court declaring the practice of instant triple talaq that is talaq-e-biddat (or divorce, hereinafter ITT) to be “unconstitutional”.
Such a description of the judgment is incorrect. The judgment is made up of three separate opinions: one by Chief Justice Jagdish S Khehar and Justice S Abdul Nazeer; one by Justice Kurian Joseph; and one by Justices Rohinton F Nariman and Uday U Lalit. The three opinions concur on some issues and differ on others. This makes the task of figuring out the judgment’s exact holding a difficult and confusing exercise. Carefully tracing the convergences and divergences leads one to conclude that the majority faulted ITT and “set it aside” not because it was found to be unconstitutional, but rather on the grounds that it was un-Islamic. What is more, even with a five-judge bench decision, the constitutional status of personal law remains as uncertain as before, which makes the prospects of any future attempt to change discriminatory personal law provisions by challenging their constitutional validity, difficult.

FACTS:
Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq-e-biddat ). She files a writ petition in the supreme court asking it to hold 3 practices:
• Talaq-e-biddat

• Polygamy

• Nikah halala
Unconstitutional as they violate Article 14, 15, 21, 25 of the constitution.
Talaq-e-biddat is a practice which gives a man the right to divorce to his wife by uttering talaq three times in one sitting without his wife’s consent. Nikah halala is a practice where a divorce woman who wants to remarry her husband would have to marry, and obtain divorce, from the second husband before she goes back to her first husband. And polygamy is a practice which allows Muslim men to have more than one wife.
on 16th of February 2017, the supreme court asked Shayara Bano, the Union of India, various women’s rights bodies, and all India Muslim personal law board to give written submission on the issue of talaq-e-biddat, nikah halala and polygamy. The Union of India and the women’s right organization supported the Ms. Bano’s plea that these practices are unconstitutional. The AIMPLB has argue that an uncodified Muslim personal law is not subject to constitutional judicial review (out of the jurisdiction of supreme court) and that these are essential practices of the Islamic religion and protected under article 25 of the constitution.
After accepting the Sahara Bano’s petition, the Apex court formed a five-judge constitutional bench on 30th March 2017. The first hearing was on 11th May 2017. On 22nd of August 2017, the five-judge bench pronounced its decision in the triple talaq case declaring that the practice was unconstitutional by a 3:2 majority.

ISSUES:
· Whether Instant triple talaq is an essential practice of Islam.
· Whether the practice of triple talaq is violative of any fundamental rights.

IMPORTANT ARGUMENTS:
Arguments of Shayara Bano (Petitioner): –
Mr. Amit Chadha. Senior advocate representing Shayara Bano began by arguing that triple talaq is not a form of divorce recognized by the Muslim personal law ( shariat ) application act, 1937. He pointed out that several high courts and supreme court decision have restricted the unilateral tar of Muslim men to divorce women and criticize the practice of triple talaq has it does not have Quranic sanction. Moreover, this judgement affirms that the Quran permits divorce for reasonable cause an if preceded attempt at reconciliation. He urged the court to strike down triple talaq as allowing an un-codified power to Muslim men to divorce violate Article 14 and 15 of the constitution.
He concluded by suggesting that if triple talaq is struck down, the law of divorce for Muslims would be the dissolution of Muslim marriage act, 1939 that could apply equally the entire Muslim community, irrespective of gender.

Arguments by Respondent: –
Mr. Kapil Sibal first clarify that the shariat act 1937 does not codify substantive Muslim personal law but restate that the Sharia shall apply as a rule of decision to Muslim overriding any custom or usage to the contrary. He asserted that object of the act was to overcome customs that discriminated against women in matter of inheritance. Moreover, since marriage is private contract and Islamic law, no state legislation can change it.
Mr. Sibal refer to the constituent assembly debates to argue that the definition of law under article 13 does not include personal laws. He pointed out that the assembly rejected amendment that sought to include “and anything else” to the definition of law it considered and rejected the inclusion of such law under article 13. He suggested that the explicit mention of personal law in the concurrent list and its absence in article 13 demonstrate the constitution maker’s intention to exclude personal law.
You can turn to the right to freedom of religious practice under article 25 clause 2. He argued that the constitution empowers Parliament to make social reform law on secular activities associated with religious practices. Hence, only after Parliament pass the law on the subject can a court assess its validity. Mr. Sibal suggested that collection of money in a temple an example of such secular activity.
Mr. Sibal concluded arguments by claiming that Muslim women are not discriminated against triple talaq rule and may even benefit from immediate relief from bad marriages. He proposed four options for Muslim women to protect herself from the discriminatory use of triple talaq:
1. She may register the marriage under the special marriage act, 1954
2. She can insert conditions into the nikahnama to prohibit her husband from exercising a triple talaq
3. She delegate the right to talaq to herself
4. Insist on the payment of a high Mehar amount to deter the exercise of triple talaq.

JUDGEMENT:
On 22 of August 2017, the five judges’ bench of the supreme court pronounced is its decision in the triple talaq case, declaring that the practice was unconstitutional by a 3:2 majority. After 6 days of arguments from both sides, it reserved the case for judgement.
The court directed the Parliament to take legislative measures against the practice of triple talaq.
Justice Rohinton Nariman and Uday Lalit held that talaq e biddat is regulated by the Muslim personal law (shariat) application 8, 1937. They said that every law whether before constitution or after constitution must be in consistency with Fundamental Rights. Article 13 cannot interfere in personal law and can’t be challenged. Though triple talaq was not challenged in Art 13 but was challenged in Art 14,15,21,25. They held the practice is unconstitutional because it is manifestly arbitrary in nature.
Justice Kurian Joseph on the other hand, in his concurring opinion, noted that triple talaq is against the Quran, and thus lack legal sanction. It lacks 2 pre-requisites i.e., Arbitration and Reconciliation. He wrote, “what is held to be bad in the holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”.
Notably, the dissenting minority opinion of chief justice Khehar and Justice Abdul Nazeer traced the elevation of personal law to the status of fundamental rights in the constituent assembly debate on Article 25 and 44. They held that triple talaq is not regulated by the shariat act of 1937, but is an intrinsic part of personal law. Thus, it is protected by article 25. Further, the solution to the gender discriminatory practice of talaq e biddat is legislative action and not a challenge to its constitutionality. They further said validity of triple talaq can only be decided by Parliament. So, they decided judiciary will put a stay of 6 months on this practice of triple talaq and in these 6 months parliament will decide whether Instant Triple Talaq is valid or not.
Present status of the judgement (whether still applicable or over ruled): –
Yes, it is still applicable. On 22nd August 2017 Indian Supreme Court beamed instant triple talaq or talaq e biddat unconstitutional. On 30th July 2019, Parliament of India declared the practice of triple talaq as illegal, unconstitutional and made it punishable act from 1st August 2019 which is deemed to be in effect from 19th September 2018.

CONCLUSION:
It is no doubt that the triple talaq judgement has become a landmark judgement especially on the aspect of private law in this country. It has given us various different aspects on how to deal with them especially Justice Joseph’s “culturally grounded” judgement. This judgment definitely showed that the supreme court has learned from its past mistakes on personal law. Despite the
fact that it lacked to give clarity on gender justice and inequality in personal laws and how they are to be treated. It also did not address if “setting aside” triple talaq meant that it had no legal effect at all or three utterances meant one. Therefore, all said and done, it is definitely a move towards equality and has given a backbone to how future personal law and social amendments need to take place. This judgement also handled the minority is a very viable way which is a step toward secularism. It is hoped that this judgement will be taken in the bright light and will help Muslim woman to live a better and more secure life as guaranteed by the law of the land.

MAIN ELEMENTS OF THE BILL:
MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019
1.OFFENCE & PENALTY:
The act declares triple talaq, whether in written or electronic form to be void (in law) and illegal.
The act makes triple talaq a cognizable offence with imprisonment up to 3 years plus fine.
2. WHO CAN FILE A COMPLAIN:
Only the wife (married women) against whom talaq has been declared, or any person related to her by blood or marriage can file the case on her behalf.
3.BAIL:
Bail may be granted by the Magistrate BUT only after hearing the women and then, if the Magistrate thinks that there are reasonable grounds for granting bail.
Offence can be compounded by the Magistrate on the request of the women.
4. ALLOWANCE & CUSTODY:
The women is entitled to seek subsistence allowance for herself and her dependent children.
Also, the women is entitled to seek custody of her minor children. 1

1 https://indiankanoon.org

www.legalserviceindia.com

BY: ANSHIKA AGRAWAL

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