TRIPLE TALAQ AND THE SHAYARA BANO v. UNION OF INDIA CASE- CRITICAL ANALYSIS

Author: Rokkam Gayatri Kumari*

Editor: Neelakshi Bhaskar

INTRODUCTION

The Hon’ble Apex Court of India has pronounced its judgment declaring the observance and practice of Instant Triple Talaq void and unconstitutional by virtue of the landmark Judgement of Shayara Bano v. Union of India.

The practice of Triple Talaq has led to the devastation of the Muslim woman’s life, and they have been facing the wrath of this social evil in the Muslim community. If at the heat of the moment, a Muslim husband gives the triple talaq to his spouse, it cannot be revoked, leading to the dissolution of their marital contract. This evil practice was thus challenged in India’s highest Court in 2016.

WHAT IS TRIPLE TALAQ?

Under Islamic Law, the dissolution of marriage takes place in four ways-

 By Husband

 By Wife

 By Mutual Consent

 Through Judicial Process

The Muslim Husband has two types of processes through which he can pronounce divorce

(Talaq) against his wife. They are-

 Talaq-e-Sunnat

 Talaq-e-Biddat

The bone of contention in the instant case is Talaq- e- Biddat.

Talaq-e- Biddat: “Biddat” means to innovate or added later on. It is also called Triple Talaq. In this form, the Husband pronounces Talaq thrice at one go, at one time and with this pronunciation, the marriage gets dissolved.

In this form of Talaq, the parties are not given any period to reconcile, arbitrate or settle the matter. Here, the Husband can pronounce Talaq either through WhatsApp, mail, or notice.

Talaq-e-Biddat is classified as an unethical form of Talaq; because it does not give the ninety-day fundamental measure for reconciliation between parties provided by the other forms. The stated ninety-day period is essential for the parties to decide on their future action concerning their matrimony. Also, within the alternative forms of weddings, nothing is determined in the heat of the moment, unlike Talaq-e-Biddat. Cause of which apart from India, many predominantly Muslim nations call the Triple Talaq a detestable variety of divorce and have banned it.

Landmark Judgement on Triple Talaq

CASE: SHAYARA BANO v. UNION OF INDIA[i]

BENCH: Chief Justice of India Jagdish Singh Khehar, Justice Abdul Nazeer, Justice Kurian Joseph, Justice Rohinton Nariman, Justice U U Lalit.

Petitioner's Counsel(s): Mr. Amit Chadha

Respondent's Counsel(s): Mr. Kapil Sibal

Facts & Issues: Shayara Bano and Rizwan Ahmed were married for fifteen years. In 2016, Rizwan Ahmed pronounced Triple Talaq to Shayara Bano. She then challenged it in the Hon'ble Apex Court by filing a writ petition. She challenged this unhealthy variety of Talaq alongside another Muslim practice under Articles 14, 15, 21, and 25 of the Indian Constitution.

The three practices of Sharia law which were challenged were:

• Instant Triple Talaq;

• Nikah Halala, an Islamic practice that states that if a divorced Muslim couple wants to get remarried to each other again, then the divorced wife should first marry another man and divorce him. Then only the divorced couple can get married to each other.

• Polygamy underneath the Islamic Law by which a Muslim husband can have more than one spouse at a time.

In February 2017, a five-judge constitutional bench of the Hon'ble Apex Court was constituted to hear this matter.

The Parties to the case were-

Petitioner- Shayara Bano;

Respondents- 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;

All India Muslim Personal Law Board stated that these impugned practices are a part of the Muslim religion, and the Hon'ble Apex Court cannot interfere in the religious matters. All these matters fall outside the jurisdiction of the Hon'ble Apex Court.

CONTENTIONS

After receiving all the written statements, the Hon'ble Apex Court has categorized them into two main issues, which were-

• Is instant Triple Talaq an essential religious practice of Islam?

• Whether Triple Talaq is offensive to the Fundamental Rights of the Indian Constitution?

The question of whether or not the Triple Talaq is essential to religious practice arose because if any practice under any religion is an important religious practice, then the Hon'ble Apex Court cannot challenge or make changes to it.

So, if this impugned practice is not an essential religious practice, then the Hon'ble Apex Court can give its judgment on it and either repeal, modify or build changes to that.

JUDGMENT

There were distinct views expressed by the Hon'ble bench which can be summarized as follows:

1. Chief Justice of India Jagdish Khehar and Justice Abdul Nazeer: They opined that the observance of Triple Talaq falls under the essential religious practice of Islam and since under Article 25 of the Indian Constitution, every citizen has the right to protect their faith, the Hon'ble Apex Court cannot interfere in the matter. And they also conjointly steered that the question of the validity of instant Triple Talaq's observance and whether or not to ban it cannot be decided by the Judiciary. Parliament should take a stance on it and decide whether to ban the practice or not within six months, during which a stay will be put on this by the Judiciary.

2. Justice Rohinton Nariman and Justice U U Lalit: Hon'ble judges were of the view that all the laws, whether pre-constitutional or post-constitutional, must be as per the Fundamental Rights. Since the impugned practice is challenged under Articles 14, 15, 21, and 25 of the Indian Constitution, the Hon'ble Apex Court has the power to declare something unconstitutional that violates Article 14.

They declared that the observance of impugned practice is unconstitutional under Article 14 of the Indian Constitution because it discriminates against Muslim women.

3. Justice Kurian Joseph: The Hon'ble Judge said the observance of this impugned practice is Islamic because it lacks the two prerequisites of arbitration and reconciliation. So, it's not the essential religious practice of Islamic law.

FINAL VERDICT

Finally, by the majority of 3:2, the Hon'ble Apex Court declared the observance of Instant Triple Talaq illegal and directed the Parliament to enact a law in this regard. It paved the way for the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which was passed in July 2019. It declared Triple Talaq's practice, whether in the written or electronic form, to be void and illegal.

The Act makes Triple Talaq a cognizable offense punishable with three years of jail term alongside a fine.

ANALYSIS OF THE CASE

The judicial pronouncement of the Shayara Bano v. Union of India has become one of the milestones in India's judicial history. Because, with this verdict, the Hon'ble Apex Court confirmed by a majority that in case of any conflict, the fundamental rights enunciated in the Indian Constitution stand at a higher pedestal in comparison to the practices mentioned in the Personal laws.

It is essential to know that Instant Triple Talaq's practice was not a traditional custom like the other form of values followed from Islam's inception. It was a custom that was added later on by some deviation from the original methods. So the Apex Court's Hon'ble Judges were right in their decision when they declared this practice as not an essential religious practice of the Shariat Law.

It is pertinent to note that the Hon'ble Apex Court, by declaring the observance of Talaq- e- Biddat unconstitutional, has protected the Muslim women's fundamental rights who have been facing the wrath of this practice. By this judgment, the Judiciary made the country get rid of another social problem prevalent in the society.

But the fact that instances of Triple Talaq being reported even after this judgment shows the lack of legal awareness amongst the public. So once a judgment is passed, legal awareness about it should be spread across, and people should be made aware of not following the said order. Everyone should be educated about their rights as well as duties and responsibilities.

References: [i] (2017) 9 SCC 1 Writ Petition (Cr.) No. 118 of 2016

· Finology Legal, What is Triple Talaq, Triple Talaq Bill in Hindi with Shayara Bano case analysis, Youtube (05th of April 2021; 09:00 am) https://www.youtube.com/watch?v=Id5lY5ce53w

*The Author is a 4th-year law student at Army Institute of Law, Mohali

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.