Triple talaq- Shayara bano case analysis

INTRODUCTION

“Triple Talaq” is a practise under which the Muslim men divorce their wife by pronouncing ‘talaq’ three times instantly. These types of practices are mostly prevalent in the Muslims of Hanafi Islamic school of thought. This is a traditional mode of practice being executed by the Muslim men but with the advent of technology, the execution of these practices have been given a blow. That means the execution has become much easy now for the males. In several cases it is found that men rather than pronouncing ‘talaq’ three times before the wife, they send it in writing either on WhatsApp or any social media platform and divorce their wife. The consequence is that the women remain the mere silent spectator and become the victim of the men’s action. This was the reason that such type of practice was constitutionally challenged in India in the case of:

Shayara Bano v. Union of India.

The case was a five judges bench case comprising of Chief Justice J. S. Khehar, S. Abdul Nazeer, J, Kurian Thomas, J,  R. F. Nariman, J and U. U. Lalit, J.

BACKGROUND

Shayara Bano, a woman of domestic violence and dowry harassment, was further divorced by her husband by executing the practice of Instant Triple Talaq. She filed a petition before the Supreme Court seeking to declare the practices of Instant Triple Talaq(talaq-e-biddat) , Polygamy and Nikah Halala in Muslim Personal law as illegal, unconstitutional and violation of Article 14(right to equality), 15(prohibition of discrimination), 25(freedom of conscience and freedom to profess, practise and propagate any religion) of the Indian Constitution. The petition was supported by Union of India and The Bebaak Collective and the Centre for Study of Society and Secularism were the two organizations supporting the petition saying that the personal laws were subjected to Fundamental rights.

the All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind argued that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law and that the matter was in the domain of the legislature.

OPINIONS

Justice Khehar’s opinion jointly with Justice Nazeer lies on the point that only the codified part of the laws like Dissolution of Muslim Marriage Act,  1939 or Muslim Women( protection of rights on divorce) Act, 1986 can be subjected to Fundamental rights but those parts which are uncodified cannot be. He has based his view on the law- The Shariat Application Act, 1937 saying that this is the only law applicable to muslims and not the customary laws but only for a limited purpose that is customary laws are not applicable only to the extent of marriage, divorce and Inheritance. Besides, they say that the Muslim personal laws is protected by Article 25 as it has been practiced by the sunni muslim community from time immemorial and thus has formed the part of their religion and therefore, it didn’t come within the phrase ‘laws inforce in India’s under Article 13 of the Constitution.

Justice Nariman’s view with that of Justice Lalit goes in opposite direction. They say that the Muslim personal laws was brought into existence by the state by exercising it’s civil authority therefore, it falls within the scope of ‘laws enforce in India’ within the domain of Article 13. According to him,  even the uncodified law should be subjected to Fundamental rights. According to him,  these laws are manifestly arbitrary because it capriciously breach the institution of marriage just by mere pronouncement without any scope of reconcialition.

Justice joseph did not join either of the views but follows a different path. He says that whether what is Quranically wrong can be legally right …. the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity.

Justices Nariman and Lalit find ITT to be un-Islamic and unconstitutional. Justice Joseph does not go into the question of constitutionality but finds IIT to be un-Islamic and hence, invalid. Thus, by no means can it be concluded that in Shayara Bano case, the Court has declared ITT to be unconstitutional.

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