Shayara Bano v. UOI

Citation: (2017) 9 SCC 1

Court: Supreme Court of India

Facts of the case: Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution. Talaq-e- bidat is a practise which gives a man the right to divorce his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent. Nikah Halala is a practise where a divorced woman who wants to remarry her husband would have to marry and obtain a divorce, from a second husband before she can go back to her first husband. And polygamy is a practice which allows Muslim men to have more than one wife.

 In 2017, the court asked Shayara Bano, the government and various women rights bodies to make submissions on these issues. The AIMPLB ( All India Muslim Personal Law Board) argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution.

Issue: The case dealt with the validity of triple talaq practice and if it is constitutes an essential religious practice in Islam

Judgment: On 22nd August 2017, the 5 Judge Bench of the Supreme Court pronounced its decision in the Triple Talaq Case, declaring that the practise was unconstitutional by a 3:2 majority. While the majority came to the conclusion that Triple Talaq is not an essential religious practice, the minority bench found it  to be an essential religious practice. As provided by Article 25 of the Constitution of India, the state cannot take away the essential religious practice of a person. The majority bench held that the Triple Talaq or Talaq-e-bidat is not protected by the exception laid down in Article 25. The court justified its point of view in the sense that even though it is practised by the Hanafi School , it is considered to be a sinful form of talaq.  While agreeing with the majority opinion, Justice Kurian held that  Triple Talaq is against the basic tenets of Quoran and lacks legal sanction. Therefore, it was averred that what is bad in theology cannot be good in law. The majority bench relied on its earlier decision Shamim Ara which held that this practice of Triple Talaq is against both theology and law and a large number of followers cannot be a reason to validate such a practice. It was also noted that the practice is not allowed in many Muslim countries.  The said practice was found to be in contravention to  Article 14 of the Constitution as it violated the fundamental right to  equality by discriminating against women in matrimonial matters. The Hon’ble Court also directed the Parliament to take legislative measures against the practice of triple talaq.

The judgment of Shayara Bano vs Union of India is one of the landmark judgments of India which is appreciated throughout the jurisdictions as it guarantees protection for Muslim women against the social evil such as Triple Talaq practice which was being  continued  in the name of religion and personal laws. The judgment made it clear that if the religious practices are violating the fundamental rights of an individual enshrined under Part III of the Constitution of India, the Court will end such practices for the welfare of its citizens. This was  a well awaited judgment for all muslim women affected by the practice throughout the country.