TEAM CODE: A

SHAYARA BANO
v.

UNION OF INDIA & ORS.

~ Narendra Modi (Prime Minister of India)

CITATIONS: AIR 2017 9 SCC 1 (SC), (2017) 9 SCC 1

WRIT PETITION (C) NO. 118 of 2016

PETITIONER: Shayara Bano

RESPONDENT: Union of India & Ors.

DATE OF JUDGEMENT: 23.08.2017

BENCH TYPE: Constitutional

CORAM: Jagdish Singh Khehar(CJ), Kurian Joseph, Rohinton Fali Nariman, Uday
Umesh Lalit, S. Abdul Nazeer JJ.

LAWS AND ACTS APPLIED IN THE CASE: Muslim Personal Law (Shariat) Act,
1937 and Constitution of India

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 I. INTRODUCTION

The acclaimed case of Shayara Bano v. Union of India popularly known as the ‘Triple Talaq’
judgement is one of the leading cases of India for axiomatic reasons. The judgement was
pronounced by the Constitutional Bench headed by then Chief Justice J.S. Khehar, as his
Lordship reserved orders to consider the persuading arguments placed before it in the first week
of summer vacations of 2017. The then Chief Justice of India, who was set to get retired a while
after this summer vacation was determined to deal with some exigent issues pending before
the Court. The lives of citizens are by far relied upon the decisions of Courts and on the other
side of the coin, there also exists a congregation of people who segregate and choose aspects
of judgements for fulfilment of their political goals and similar happened in the aftermath of
this case as well. In a manner, this is also an attempt to demystify the most powerful Court of
the country.

The judgement will surely be read and for that matter re-read by law professionals and those
affected by it, but it can never be considered as a thesis on Islam. In recent years, perhaps as
the outcome of politically motivated will, a vast number of people have misconceptions about
Islam and to the surprise many educated Muslims are not well versed with fine details to hold
up their own in a debate on public platform. In early 2017, where the piled-up matters began
to be mentioned before the Chief Justice by the Advocates representing the aggrieved Muslim
women on the issues of triple talaq and the AIMWPLB (All India Muslim Women’s Personal
Law Board), there was a clear indication that Court would find a slot in the near future. Once
when the Chief Justice of India opined that the case could be heard by the Constitutional Bench
during the summer vacation itself, the then Attorney General Mukul Rohatgi insinuated at the
reluctance to expedite this matter. Despite of this the CJI had already made up his mind to deal
with this convoluted issue.1 The Triple Talaq judgement is widely regarded as a safeguard
against the social evil that was in practice since a long time. Due to the astute and ratiocinate
reasoning provided by the majority bench of the Supreme Court, India finally managed to
abolish and wipe out this retrogressive practice of instantaneous divorce. This judgment not
just unveiled a new world for the petitioner (Shayara Bano) but also for thousands of women
across the nation. Justice Joseph while extending his support to the judgment of Justice
Rohinton Fali Nariman rightly asserted that, “What is held to be bad in the Holy Quran cannot
be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

1
SALMAN KHURSHID, Triple Talaq:Examining Faith

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 II. BACKGROUND

For a meaningful analysis and commentary of this case, it’s vital to have a comprehensible
understanding of the factual matrix of the case.

The petitioner Shayara Bano and her husband Rizwan Ahmed were married to each other for
15 years, but the husband divorced the petitioner in 2016, by means of Triple Talaq (Talaq-e-
biddat). Aggrieved by this, Shayara Bano knocked the doors of the court and filed a writ
petition in the Supreme Court of India. The petitioner challenged the three practices of Islam
namely Polygamy, Talaq-e-biddat and nikah-halala (a practice in which a divorced woman
who wishes to remarry her husband must marry and get a divorce from a second husband before
remarrying her first husband while polygamy is a practice of Muslim men in which they have
more than one wife). The petitioner prayed the Court to declare these three practices as
unconstitutional as they were violative of Articles 14, 25, 21 and 25 enshrined in Part III of the
Constitution of India and were also against the interests of women. In February, 16th 2017, the
Supreme Court invited written submissions on Triple Talaq, Polygamy and Nikah Halala from
the petitioner, respondent and several organizations working for women rights like AIMPLB
(All India Muslim Personal Law Board). However, the AIMPLB’s contention was that Muslim
Personal Law is not a subject of judicial scrutiny or review and its constitutionality cannot be
questioned on the grounds that they are immune under Article 25 of the Constitution of India.
After this matter reached the doors of the courts, it framed two major issues associated with
the matter namely:
a) Whether the practice of Triple Talaq (Talaq-e-biddat) is constitutional?
b) Whether the practice of Triple Talaq (Talaq-e-biddat) is an essential religious practice of
Islam?
After catena of arguments and written submissions, the Constitutional bench arrived at a
conclusion. By majority ratio of 3:2, the bench set aside and declared the practice of
instantaneous Triple Talaq or Talaq-e-biddat as unconstitutional in accordance with Article 14
read with Article 13(1) of the Constitution of India. The grounds for such decisions were
logical and multifarious. Justice Rohinton in his judgement expressly stated that the impugned
practice of talaq-e-biddat has allowed the marital ties to be severed on whims of the husband
and there is no attempt to restore amicability. This entire practice is therefore violative of
Article 14 of the Indian Constitution and deserves to be chucked down.

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Another prominent rationale that was behind striking down this age long practice in Islam was
a simple reasoning that if striking and condemnation of any practice can cause a significate
change in any religion and can bring about a positive response then such practice is ‘essential
religious practice’and Article 25(1) protects only such practices. The majority of judges relied
their stance on the decision of Shamim Ara vs. State of UP.2

Apart from this, the fact that many major Islamic countries across the globe like Bangladesh,
Malaysia, Algeria, Jordan, Iraq, Brunei, the United Arab Emirates, Indonesia, Kuwait and
Morocco have banned the practice of Triple Talaq also acted as contributing factor to the
decision. The court clarified that the Muslim Personal Law (Shariat) Application Act 1937 was
void as it recognizes and enforces triple talaq, citing Article 13(1), which states that all laws in
force immediately before the commencement of the current Constitution (including the 1937
Act) are void where they are inconsistent with the fundamental rights enshrined in the
Constitution. It was also held by the court that the practice of triple talaq is not immune by the
exception of Article 25. One of the major reasons which has played a part in the striking down
of Triple talaq rule is the fact that Quran does not promote this practice and since Quran is the
paramount and primary source of Muslim Law so the evil practices which stand in
contradiction to the basic tenets of Quran cannot be righteous.

III. COMMENT

Keeping in consideration the background, surrounding factors and the judgment delivered by
the hon’ble Supreme Court of India, I can draw an analysis that this judgement has put a halt
to the 1400 years long arbitrariness. I advocate this decision as it has acted as a ray of hope for
the Muslim women community who have been supressed and exploited at the hands of men in
some or the other way. At the same time, it has also acted as a stepping-stone for women
empowerment. Strongly agreeing to the statement of Justice Joseph, that what is bad in Quran
cannot be good in Shariat, I feel that this judgement has opened a door for striking down more
such evil practices. As far as triple talaq is concerned it anyway had to be struck down if not
that day, then someday else due to the reason that this is against the principles of ‘Rule of Law’.
In a country like India where rule of law is not just preached but also practiced, things like
Triple Talaq cannot survive. Rule of law is not just a mere principle rather it is part of the basic

2
(2002) 7 SCC 518
See also: https://www.lawyersclubindia.com/judiciary/shamim-ara-vs-state-of-up-anr-the-hon-ble-supreme-
court-has-invalidated-arbitrary-triple-talaq-5170.asp

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structure of the Constitution of India and if the Triple Talaq is against the rule of law then it is
subsequently in contravention to the basic structure as well. As we are aware that nothing can
go against the basic structure of the Constitution. So, I believe that this is an additional ground
that justifies the removal of Triple Talaq and declaring of it as unconstitutional.

There has been a tendency of pitting religion above the Constitution and then further taking the
umbrella of Article 25. In the case in hand, the holy Quran as the authoritative source of Muslim
law always promote permanence of matrimony and only in extreme situation where there are
no hopes of reconciliation a marital tie can be terminated. And Triple talaq which is so instant
that it does not leave the scope of deliberation or reconciliation is unreasonable, therefore, the
hon’ble judges have adopted a rightful approach in dealing with this case.

Every coin has two sides and so does this one. While the fact that triple talaq is struck down is
appreciated but at the same time there is resentment that the court overlooked the matters of
polygamy and nikah-halala which were also the subjects of the impugned petition alongside
talaq-e-biddat. This judgment was hotly canvassed in media and invited lot of controversies, if
the issue of polygamy and Nikah-halala was dealt with that time itself then it would have been
a better move. Dealing with both these issues separately and exclusively in future would repeat
the history and would again be controversial ridden and might cause resentment in Muslim
community. It is human psychology that when an already bigger issue is there so it would
hardly make any difference if two more issues are dealt that time with it, but if these three
issues are dealt with separately then it would increase the gravity of the issues.

The minority including the Chief Justice were of the view that triple talaq is a constituent of
Muslim Personal Law and that it has an equal stature to that of Part III of the Constitution.
They also condemned the international conventions and stated that it had no say in this entire
matter since it revolves around a personal law. Chief Justice Khehar also mentioned in his part
of judgment that “It is not open to a court to accept an egalitarian approach, over a practice,
which constitutes personal law.” He further stated that a practice which is in existence and
accepted by all for over 1,400 years cannot be set aside, on the ground of being violative of the
concept of the constitutional morality, through judicial intervention.

I have a dissenting opinion at this point, the minority judges simply snubbed the atrocities that
the Muslim women have faced, the purpose of judiciary is to dispense justice to its citizens,
and they must not recluse from this duty due to some technicalities. The tenets of Constitution
are based on egalitarian approach and what is wrong would stay wrong, so taking the shield of

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personal law every time to keep the evils immune should not be continued. Justice Joseph has
rightfully held that, “Merely because a practice has continued for long, that by itself cannot
make it valid if it has been expressly declared to be impermissible. The whole purpose of the
1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices
with respect to subjects enumerated in Section 2, which include talaq. Therefore, in any case,
after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.
Hence, there cannot be any Constitutional protection to such a practice.”3 Rules, laws and
practices were made for the welfare of its subjects and not for its destruction, if these laws,
rules and practices turn destructive then they deserve to be struck down.

IV. CONCLUSION

After a protracted legal battle, the petitioners got the victory that is cherished by thousands of
women across the country. This landmark decision in the history of judiciary has laid a
foundation for social amendments and has dealt with the minority in a commendable manner
which shows the secular beauty of this country. The sole focus of this case was not gender
justice, but it had magnificent impact on the issue of gender inequality. This judgment has
thwarted the tendency of men to end their marital ties on mere whims and facies. The fact that
the minority judges including the Chief Justice failed to recognise the miseries of these women
has raised eyebrows. Nevertheless, the law of the land now has a clear stance as far as the issue
of Talaq-e-biddat is concerned.

3
LIVE LAW, https://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read-judgment/ (Last Visited
March 6, 2022)

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