Shayara Bano v. Union of India and Ors.

, (2017) 9 SCC 1: Case

Comment

SUNNY VERDANI*

Talaq...! Talaq...! Talaq...! These three words "Finally I feel free today. I
have the order that will liberate many Muslim women,"~Shayara Bano.

INTRODUCTION:
The instant case is one of the most popular cases in the recent past; this case
involved tragedy and excellent interpretation which has made this a
landmark case. In this case, the question that was raised before the hon’ble
supreme court that was Whether divorce by way of ‘talaq-e-biddat’ (instant
triple talaq), falls foul of the ‘Fundamental Rights’ guaranteed under the
Indian Constitution, because it has a statutory sanction under the Muslim
Personal Law (Shariat) Application Act, 1937 (“Shariat Act”);
Triple Talaq is an arrangement in Islamic individual law that enables men
to separate from their spouses by saying Talaq three times. As indicated by
Quran, there ought to be a sure time hole among three phases of Talaq. Be
that as it may, this arrangement is terribly abused and a few men are giving
moment separation to their spouses by saying talaq thrice even without their
wives.
There have been cases in which Muslim men in India have separated from
their spouses by issuing the supposed triple talaq by letter, phone and,
progressively, by instant message, WhatsApp and Skype. Some of these
cases advanced toward the courts as women challenged the custom.

 How Muslim women won the fight?

 The women who challenged triple talaq.
 The battle against instant divorce.
The probable reason why the law in India has failed to give a uniform
opinion in this regard a petition demanding triple talaq may be filed having
mala fide intentions.

Triple talaq separate has no mention in Sharia Islamic law or the Koran,
despite the fact that the practice has existed for a considerable length of
time. Islamic researchers say the Koran unmistakably illuminates how to
issue a divorce - it must be spread more than three months, permitting a
couple times for reflection and compromise. Most Islamic nations,
including Pakistan and Bangladesh, have prohibited triple talaq, yet the
custom has proceeded in India.

Through its paramount choice conveyed by a five-judge seat on account of

Shayara Bano and Ors v. Association of India on August 22nd 2017, the
Supreme Court of India (SC) freed Muslim ladies from the ceaseless dread
of self-assertive and unusual separation. The SC denied the backward
routine with regards to moment 'triple talaq', which enabled Muslim men to
singularly end their relational unions basically by communicating "talaq"
thrice without making any arrangement for support or separation settlement.
These frequently occurred on the flimsiest of grounds, assuming any, which
left the women at a genuine and grave disadvantage.

The long-standing battle to get triple talaq abrogated expanded re-

established compel in October 2015, when the SC researched the matter of
Muslim women going up against sex based separation inside the
community. A Constitutional Bench of the SC was set up to take a gander at
if Muslim women go up against sexual orientation isolation in divorce from
cases.

FACTS IN BRIEF:

To go over the facts of the case briefly, Shyara bano, a woman from
Uttarakhand emerged as a defining persona in legal battle against the
patriarchal custom. Ms. Bano was the original petitioner for the situation
after she moved towards the court in 2016 requesting that the talaq-e-biddat
articulated by her better half be pronounced as void. She additionally fought
that such one sided, sudden and irrecoverable type of separation be
announced unlawful, contending that the act of triple talaq disregarded the
essential privileges of Muslim ladies.

“Since my student life, I didn’t like the anti-women social traditions like
triple talaq and halala. But when it happened to me... it [the dislike] grew.
Normally, these things do not happen, but when it hits you, you realise how
bad this practice really is,” says Ms. Bano

She lady survivor of aggressive behaviour at home and endowment

badgering had been singularly separated through Instant Triple talaq. She
documented an appeal to under the watchful eye of the Supreme Court
looking for a presentation that the acts of ITT, polygamy, and nikah halala
in Muslim individual law were unlawful, illegal, and infringing upon
Articles 14 (equality before law), 15 (prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth), 21 (protection of life
and personal liberty) and 25 (right to freedom of conscience and religion) of
the Indian Constitution.
The Court anyway analyzed the issue of Instant Triple Talaq alone. The
Union of India bolstered the appeal. Among the others who intervened for
this situation, the All India Muslim Personal Law Board and the Jamiat
Ulema-e-Hind contended that the Court did not have ward to engage an
established test to Muslim individual law and that the issue was in the area
of the law making body.
Since the 1980s, various high courts had held that for divorce to be
substantial, it must be articulated for a sensible reason, and should be gone
before by endeavours at compromise encouraged by go betweens speaking
to the two gatherings. On this view, however generally summoned by
spouses and approved by the priests, Instant Triple Talaq was at that point
unlawful.
 The two judges held this was on the grounds that the well spring of
individual law was religion instead of the state. The establishments of this
judgment have been censured by prominent lawful researchers.
A few high court seats have likewise required its revaluation. The Supreme
Court confirmed it in the 1980 judgment Sri Krishna Singh v Mathura Ahir
(1980), at that point certainly toppled it in the 1996 judgment C Masilamani
Mudaliar and Others v The Idol of Swami nath Thirukoil (1997) and after
that maintained it again in the 1997 judgment Ahmadabad Women's Action
Group v Union of India (1997).
Along these lines, Shayara Bano's case was vital not only for how the
Court chose her quick cases, yet in addition since it offered an open door
for a five-judge seat of the Supreme Court to clear up the established status
of personal law.

FRAMING OF ISSUES:
There are 3 Judgments looking into it (Minority Judgments, of CJI Khehar
and J. Nazeer, composed by CJI Khehar; two Majority Judgments, one
composed by Kurian J. also, another composed by Nariman J. in the interest
of himself and Lalit J). The lie issues for the situation, yet for curtness and
better understanding we will blend the issues and diminish them down to
the accompanying:

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?

CRITICAL ANALYSIS OF ISSUES:

Issue 1 – Is Triple Talaq Islamic?

 Talaq-e-biddat is an irreversible type of profession of Talaq either by
articulating it thrice in one go talaq...talaq...talaq... or by a conclusive
declaration via "I Talaq you unavoidably". A particular component of this
type of Talaq is that it is taking effect right now and is unavoidable. Also,
Triple Talaq must be articulated by a husband against his significant other
and not the other way around. 1
Islamic law has four sources, to be specific, The Quran, Hadith, Ijma and
Qiyas.2 According to the scholarly creator A.A. Fyzee, the Quran, being the
expression of God is the crucial wellspring of law; supplementary to the
same is Hadith which are the conventions of the prophet; the staying two
are not pertinent. The real purpose of contention emerges since there is no
specify of Triple Talaq in the Quran and it is tried to be defended by
Hadiths as it were. The Quran dislikes the act of Talaq yet it glares more on
permanent and fanciful type of divorce where the husband will undoubtedly
give an explanation behind the separation and which is portrayed by the
nonattendance of a compromise period for the couple. Be that as it may, a
comparable line of thinking is made to legitimize the legitimacy of Triple
Talaq. The respondents have contended that the Quran does not say any
type of Talaq and along these lines, if the rationale behind petitioner’s
contention is to be taken after then all types of divorce should be announced
unislamic which will render the wedded couples remediless in the event of
martial disputes.

Critical analysis of issue:

Kurian J's judgment puts a staggering dependence on the petitioner
contention in presuming that Triple Talaq is unislamic. This is especially
fascinating in light of the fact that it doesn't stay upon the dependability of
the Triple Talaq, but instead concentrates just upon whether it is a part of
Islam or not. Be that as it may, Kurian J. attempts to legitimize his remain
by judgments in Shamim Ara, Masroor Ahmed and Jiauddin Khan v.
Anwara Begum by Nazarul Islam J. judgments, an endeavor is made to
answer the question using non-judicial sources.

1
http://ecollections.law.fiu.edu/cgi/viewcontent.cgi?article=1093&context=faculty_publications
2
Asaf A.A. Fyzee in his book Outlines of Muhammadan Law, 5th Edition
 Maulana Usmani, in following the beginnings of Triple Talaq in his book
bases on stanza 2:229-30 of the Quran which determines the articulation,
"Al-talaqu marratan", i.e., division may be enunciated twice. He reasons
that since a man can't visit some person's home twice with the exception of
if there has been some time gap between two visits; likewise "twice" can't
be meant mean consistently.3
Overwhelming reliance on the Shamim Ara judgment4 is as I might want to
think senseless and regardless little heed to dismissing the manner in which
that the material bit of judgment outlines obiter and not the extent, the
reasoning used in the Shamim Ara judgment can be separated from the
conclusion that Triple Talaq is illicit. The reasoning and conclusion in
Shamim Ara, as in like manner referred to in this judgment, passes on that
each Talaq must be sensible and be gone before by endeavours at
compromise. The articulations "endeavor at compromise" require not so
much suggest that the undertaking must be between the two decrees of
Talaq; it can in like manner be before statement of Talaq out of nowhere.
Furthermore, if one is to scrutinize the Quranic compositions into the
judgment, it is the impulse of the mate which is rebuked by prophet,
however, what the present judgment actualizes is following of a compulsory
iddat period by the social events already effectuating the partition. Along
these lines, as I might want to figure, the reasoning would have better
served the conclusion had it put its reliance on organize interpretation of the
Quran by Muslim researcher rather than setting reliance on the above
judgment and declaring it to be the convention that must be adhered to.

3
http://www.irfi.org/articles/articles_151_200/triple__talaq.htm
4
https://indiankanoon.org/doc/332673/
 Issue 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?

Going to the next larger part Judgment where Nariman J. composes Triple
Talaq to be illegal based on arbitrability, the couple of conclusions we can
make from his judgment are:
 By concentrating on arbitrability of law and not sexual orientation
correspondence under Art. 15, as a reason for pronouncing Triple Talaq to
be illegal, he thoughtfully swings the talk far from the worry that Talaq, as
an instrument, is accessible just for males and not for females and stays
away from the trouble of likewise scrutinizing the other two types of Talaq.
This enabled him to just spotlight on Triple Talaq as recognized from
different types of Talaq.
 By holding the Muslim Personal Law (Shariat) Application Act, 1937 to be
a statutory control of Muslim separation, he avoids the re-examination of
Narasu Appa Mali judgment of Bombay High Court, which had
additionally been thusly re-attested by resulting Supreme Court judgments.

Critical analysis of issue:

Nariman J. constructs his judgment with respect to the elucidation of S.2 of
the 1937 Act5 by emphasizing the approach that must be taken to decipher a
"Non-obstante" condition, set down in Aswini Kumar Ghose v. Aurobindo
Bose 1953 SCR 1 as takes after;
“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

5
S. 2 of the Act

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural
land) regarding intestate succession, special property of females, including personal property inherited or
obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and waqfs (other than charities and charitable institutions and charitable and religious endowments)
the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)
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 lead to the segment, just those traditions and uses which are
in opposition to Shariat are refuted; while, other such traditions and usages
which are not conflicting with Shariat nor are a piece of Shariat are as yet
legitimate. An exposed utilization of this segment does not furnish us with
enough proof to close either way. CJI Khehar puts accentuation on the
authoritative discussions to comprehend the intendment behind the Act. In
this, taking everything into account, it is presented that it was the disparity
between the drafting of the Objects of the Act that prompted such a
fluctuated and repudiating conclusion by the judges.

An apparently less prominent however a huge effect of the judgment of

Nariman J. will be that, his thinking has uncovered the whole Muslim
Personal Law to be challengeable under Part III of the Constitution. This
may open a totally new way to prosecution against the backward and harsh
works on proceeding under the sanctuary of Muslim Personal Law in that
capacity practices should fulfil Part III, at this point.

Issue3 - Is it protected by Article 25 of the Constitution?

The response to this question will be dictated by the vitality test. The
vitality test chooses whether a specific practice is a vital piece of a religion
or not. Both the minority and the dominant part judgments harp on this
issue and depend on various judgments to achieve their decisions.
Depending upon Sardar Syedna Taher Saifuddin Saheb case 1962 AIR 853,
CJI Khehar, cites that whether a practice is fundamental or not must be
chosen from the perspective of the individuals from that community.
Nariman J., in citing, Commissioner of Police v. Acharya
Jagdishwarananda Avadhuta 2004 (12) SCC 770, states that a basic practice
is the training on which center convictions of the religion are established; a
foundation where upon the superstructure of the religion is worked, without
which the essential character of the religion would change. It is a permanent
 and fundamental piece of the religion and can't be subtracted or included
later.

In the event that the vitality test according to Nariman J. is to be tailed, we

discover no trouble in announcing Triple Talaq to be outside the ambit of
Article 25. In any case, following the test set around CJI Khehar, we come
to address whether Triple Talaq is viewed as a basic part by the Islamic
people group or not. This inquiry can be replied in the negative, since Islam
comprises of numerous community, a great deal of which don't take after
Triple Talaq as a practice. In any case, if this test is to be rehashed with
regards to India, where a generous piece of Islamic people group are Hanafi
Muslims, one must solicit in the enthusiasm from soul of the area that
whether the Hanafi people group (which is significantly keen on the result
of this case) considers Triple Talaq to be a fundamental piece of the religion
or not. In light of entries under the watchful eye of the Court and the
discourse following, this inquiry, as well, is replied in the negative. At the
point when the respondents themselves present that such training is thought
to be wicked even by the Hanafi people group and AMPLB has likewise
passed bearings controlling such practice, it will be ridiculous to state that
what is corrupt according to a community is additionally basic as indicated
by them.

Injuncting Fundamental Right under Article 25

The cases so inspected by Dr. Prakash feature the contention between
Article 1426 and normal laws where they presume that subject to specific
confinements, the customary laws don't go about as preclusion on the
activity of forces under Art. 1427. However, the present discussion
questions whether the activity of Article 142 can confine the pleasure in
Article 25 (Constitutional law and not common law). This is replied in the
negative on following grounds:

6
Supra
7
UCC vs. UoI 1992 AIR 248; Supreme Court Bar Assn vs. UoI (1998) 4 SCC 409
 As for each the rule of Harmonious Construction, no single law of any
administrative plan ought to beat some other arrangement of the
authoritative plan; in other words all arrangements are similarly great. In
this manner, Art. 142 can't be deciphered in a way as to confine the
happiness regarding Art. 25 of the Constitution.
 By no stretch of significance can the expression "complete Justice" be
explained to likewise incorporate injuncting of a key right. It will be an
over the top suggestion if the specific right that the Court is compelled by a
sense of honour to ensure is negated by it briefly "in light of a legitimate
concern for doing complete equity".

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Sunny Verdani
BBA LLB Corporate law
2017-22 (2nd Year)
School of Law, UPES
Dehradhun.