SHAYARA BANO VS.

UNION OF INDIA and OTHERS

Petitioner : Shayara Bano
Respondent : Union Of India, Ministry of law and justice, Ministry of women and child
development, Ministry of minority affairs, National commission of women, All India
Muslim personal law board, Rizwan Ahmad
Nature Of The Case : Civil Case (Landmark Case)
Bench :
● CJ. Jagdish Singh Khehar
● Justice Kurian Joseph
● Justice Rohiton Nariman
● Justice U.U Lalit
● Justice Abdul Nazeer
CASE NO: WP(C) 118/2016
Date Of Judgement : 22nd August 2017
Ruling Court : Supreme Court

ISSUE :
1. Whether the practice of Triple Talaq valid ?
2. Whether Triple Talaq is being protected under Article 25(1) which guarantees right
to “profess, practice and propagate religion”?
 3. Whether or not Triple Talaq is an essential feature of Islamic belief and practice ?
4. Is Talaq-e-Biddat Islamic in nature and whether it comes under the protection of
the Article 25 of the constitution?
5. Is instant Talaq violative of article 14 of Indian constitution? Can the legislature
make laws protecting Muslim women under article 15(3) and (4) of the constitution?
CASE DESCRIPTION:
A constitution bench has declared that the practice of instantaneous Triple Talaq is
unconstitutional.
Abstract—. In general, human rights are equated with more freedom and progress.
However, it becomes pertinent to note that conferring rights do not always result in
emancipation. To make Triple Talaq unconstitutional is one of the most historic moves
taken by the Indian parliament. Apparently, human rights manifests that women are
narrative of modernity and as image of Muslim women is victimized in need of protection
through liberal rights. The current debate objectifies the gender discrimination and violates
intersectionality. Finally, analysis will be made about whether making triple talaq
unconstitutional is a bane or boon for the muslim women.
INTRODUCTION
Shayara bano was married to Rizwan Ahmad for 15 years. In 2016, he divorced her
through instantaneous triple talaq. She filed a writ petition in the Supreme Court asking to
hold triple talaq, polygamy, nikah-halala as they violate articles 14, 15, 21, 25 of the
constitution.
If simply understood Triple talaq is a form of divorce in Muslim law where husband
when says the word “talaq” three times in oral, written or in electronic form. Triple talaq,
also known as talaq-e -biddat, instant divorce (irrevocable divorce) is a form of Islamic
divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni
Islamic schools of jurisprudence 34 . The debate has involved the Government of India
and the Supreme Court of India, and is connected to the debate about a uniform civil code
(Article 44) in India.
Article 44 states that Uniform civil code for the citizens the State shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India.
This case study involves a detailed analysis of triple talaq case involving difficulties in
contents and involving majority from both the houses and to enact a proper law for
protecting women rights.
BACKGROUND :
Muslim family affairs in India are governed by the Muslim Personal Law (Shariat)
Application Act, 1937 (often called the "Muslim Personal Law"). It was one of the first
acts to be passed after the Government of India Act, 1935 became operational, introducing
provincial autonomy and a form of dyarchy at the federal level. Muslim marriages in India
are considered to be a private matter, unless the couple decided to register their marriage
under the Special Marriage Act of 1954.
On 16th february 2017, the court asked Shayara bano, the union of india, various women’
right bodies to submit a written petition on the issue of triple talaq, nikah-halala and
polygamy. After certain arguments on 22nd august 2017, the 5 judge bench of supreme
court pronounced its decision in triple talaq case as unconstitutional by a 3:2 majority.
BACKGROUND OF THE CASE:
In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an
affluent and well-known advocate in Indore, Madhya Pradesh, and had five children from
the marriage. After 14 years, Khan took a younger woman as second wife and after years
of living with both wives, he divorced Shah Bano, who was then aged 62 years. She filed a
petition at a local court in Indore, against her husband under section 125 of the Code of
Criminal Procedure, asking him for a maintenance amount of ₹500 for herself and her
children.
On November 1978 her husband gave an irrevocable talaq (divorce) to her which was his
prerogative under Islamic law and took up the defence that hence Bano had ceased to be
his wife and therefore he was under no obligation to provide maintenance for her as except
prescribed under the Islamic law which was in total ₹5,400. In August 1979, the local
court directed Khan to pay a sum of ₹25 per month to Bano by way of maintenance. On 1
July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh
enhanced the amount of maintenance to ₹179.20 per month. Khan then filed a petition to
appeal before the Supreme Court claiming that Shah Bano is not his responsibility
anymore because Mr. Khan had a second marriage which is also permitted under Islamic
Law.
THE ON-GOING CONFLICT OF OPINIONS –
SUPPORT OF TRIPLE TALAQ:
Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB),
a nongovernmental body that supervises the application of Muslim personal law and by
various women and child rights association. It believes that the State does not have the
right to intervene in religious matters. AIMPLB issued a code of conduct in April 2017
regarding talaq in response to the controversy over the practice of triple talaq. It also
warned that those who divorce for reasons not prescribed under shariat will be socially
boycotted in addition to calling for boycott of those who use triple talaq recklessly and
without justification . In addition, it also stated that it should be delivered in three sittings
with a gap of at least one month each .
OPPOSITION TO TRIPLE TALAQ :
The practice faced opposition from Muslim women, some of whom filed a public interest
litigation in the Supreme Court against the practice, terming it "regressive”. The
petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act,
1937, to be scrapped,as it states: 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 wakfs (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).
Article 14 of the Indian constitution states: 14. Equality before law The State shall not
deny to any person equality before the law or the equal protection of the laws within the
territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.
CASES EVEN AFTER THERE HAS BEEN A BAN ON TRIPLE TALAQ:
1. A case of triple talaq has been registered at Savadatti police station, the first in
Karnataka since the Parliament passed the Muslim Women (Protection of Rights on
Marriage) Act 2019, which bans divorce by triple talaq.
2. On 24th August 2019, a man has been arrested in Uttar Pradesh's Muzaffarnagar district
for allegedly divorcing his wife by pronouncing the word 'talaq' thrice, a practice which
has been criminalised, police said on Saturday.
3. Maharashtra registered its first case, with Mumbai police booking a Vikhroli resident
for allegedly sending his wife a triple talaq message on WhatsApp.
EARLIER CASE RELATING TO TRIPLE TALAQ AND MAINTAINANCE:
Mohd. Ahmed Khan v. Shah Bano Begum commonly referred to as the Shah Bano case,
was a controversial maintenance lawsuit in India, in which the Supreme Court delivered a
judgment favouring maintenance given to an aggrieved divorced Muslim woman. Then the
Congress government, panicky in an election year, gave in to the pressure of Muslim
orthodoxy and enacted a law with its most controversial aspect being the right to
maintenance for the period of iddat after the divorce, and shifting the onus of maintaining
her to her relatives or the Waqf Board. It was seen as discriminatory as it denied right to
basic maintenance available to non-Muslim women under secular law.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL,
2019:
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok
Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. It
replaces an Ordinance promulgated on February 21, 2019.
The Bill makes all declaration of talaq, including in written or electronic form, to be void
(i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other
similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable
divorce is void.
Offence and penalty: The Bill make declaration of talaq a cognizable offence, attracting up
to three years’ imprisonment with a fine. (A cognizable offence is one for which a police
officer may arrest an accused person without warrant.) The offence will be cognizable
only if information relating to the offence is given by:
(i) The married woman (against whom talaq has been declared), or
(ii) Any person related to her by blood.
The Bill provides that the Magistrate may grant bail to the accused. The bail may be
granted only after hearing the woman (against whom talaq has been pronounced), and if
the Magistrate is satisfied that there are reasonable grounds for granting bail.
The offence may be compounded by the Magistrate upon the request of the woman
(against whom talaq has been declared). Compounding refers to the procedure where the
two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions
of the compounding of the offence will be determined by the Magistrate.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek
subsistence allowance from her husband for herself and for her dependent children. The
amount of the allowance will be determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek
custody of her minor children. The manner of custody will be determined by the
Magistrate.
JUDGEMENT:
The case was called Shayara Bano v. Union of India & Others. The bench that heard the
controversial triple talaq case in 2017 was made up of multifaith members. The five judges
from five different communities are Chief Justice JS Khehar (a Sikh), and Justices Kurian
Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu) and Abdul Nazeer (a
Muslim). The Supreme Court examined whether Triple talaq has the protection of the
constitution—if this practice is safeguarded by Article 25(1) in the constitution that
guarantees all the fundamental right to "profess, practice and propagate religion".
The Court wanted to establish whether or not triple talaq is an essential feature of Islamic
belief and practice. In a 397-page ruling, though two judges upheld validity of instant
triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus
barring the practice by a 3–2 majority. Since the majority opinion was against the practice
the court held that that triple talaq is not protected by the exception laid down in Article 25
and violates Article 14. The practice of triple talaq was banned. Justice khehar wrote his
opinion that such practice is an essential religious element of Islam. Since minority
opinion was to declare the said practice to be constitutional and an essential religious
practice however a judge argued that instant triple talaq violated Islamic law. The bench
asked the central government to promulgate legislation within six months to govern
marriage and divorce in the Muslim community. The court said that until the government
formulates a law regarding instant triple talaq, there would be an injunction against
husbands pronouncing instant triple talaq on their wives.
OBITER DICTA :
The minority opinion delivered Chief Justice Nazeer, elevates personal law to status of a
fundamental right and protects instantaneous Talaq as an essential practice under Islam.
The two sets of opinion comprising the majority invalidate Triple Talaq as unislamic
( Justice Joseph) and as unconstitutional (Justice Nariman and Justice Lalit ).
In our opinion, therefore, the 1937 Act, seeks to recognize and enforce Triple Talaq, is
within the meaning of the expression “laws in force” in Article 13(1) and must be struck
down as being void to the extent that it recognizes and enforces Triple Talaq. Since we
have declared Section 2 of the 1937 Act.
In our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application Act),
insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the
expression "laws in force" in Article 13(1) and must be struck down as being void to the
extent that it recognizes and enforces Triple Talaq Since we have declared Section 2 of the
1937 Act to be void.
RATIO DECIDENDI :
Justice Lalit and Justice Nariman in their combined opinion state said that Muslim
Personal Law is both recognized and enforced by virtue of the 1937 Act. It is clear from
the operative words of Section 2 which state that the “the rule of decision in cases where
the parties are Muslims shall be Muslim personal law (Shariat)”.(Para 18)
The 1937 Act is a law made by the legislature before the Constitution came into force, it
would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be
hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the
Constitution.

Justice Nariman and Justice Lalit in their conclusions pointed out that Triple Talaq is a
form of Talaq which is itself considered to be something innovative, namely, that it is not
in the Sunna, being an irregular or heretical form of Talaq. It is violative of Article 14 as it
is manifestly arbitrary in the sense that the marital tie can be broken capriciously and
whimsically by a Muslim man without any attempt at reconciliation so as to save it.
Justice Joseph in his statement said that Triple Talaq is against the basic tenets of the Holy
Quran and consequently, it violates Shariat. It cannot be considered integral to the
religious denomination. Relies on Shamin Ara v. State of U.P., which held that Triple
Talaq given without prior efforts of reconciliation as mandated in the Quran would be
invalid.

Other judges such as Chief Justice Khehar along with Justice Nazeer stated that the
instantaneous Triple should not be banned, in their judgement, they pointed out that :
“The practice of Triple Talaq has to be considered integral to the religious denomination in
question – Sunnis belonging to the Hanafi school. The practice of Triple Talaq, has had
the sanction and approval of the religious denomination which practiced it and is thereby a
part of their ‘personal law’.”

CONCLUSION:
Thus, it can be concluded that making of Triple Talaq as unconstitutional or void was a
big step taken by both legislature and judiciary.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019 passed on 26 July 2019
after a very long discussion and opposition finally got the verdict (the Indian Supreme
Court judgement of August 2017 described below) to all women. It makes instant triple
talaq (talaq-e-biddah) in any form – spoken, written, or by electronic means such as email
or SMS – illegal and void, with up to three years in jail for the husband.
Triple talaq became illegal in India on 1 August 2019, replacing the triple talaq ordinance
promulgated in February 2019.

REFERENCES: (BIBILIOGRAPHY)
1. https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019
2. https://www.thehindu.com/news/cities/mumbai/case-registered-against-thane-man-
under-new-triple-talaqlaw/article28798992.ece 7
3. https://en.wikipedia.org/wiki/Triple_talaq_in_India
4. https://indiankanoon.org/doc/115701246/
5. https://www.indiaabroad.com/blogs/muslim-personal-law-is-outdated-unfair-
andirrational/article_c8c5ea22-8a91-11e7-97fd-cfb62c947303.html
6. http://www.lawyersclubindia.com/articles/Triple-Talaq-in-India-8428.asp
7. https://www.business-standard.com/about/what-is-triple-talaq-law
8. https://timesofindia.indiatimes.com/topic/Triple-Talaq