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Case Commentary: Is Triple Talaq An Essential Religious Practice Under Article 25 Of The Indian Constitution? Shayara Bano V. Union Of India And Ors. [Air 2017 9 Scc 1 (Sc)]
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CASE
COMMENTARY: IS TRIPLE TALAQ AN ESSENTIAL RELIGIOUS PRACTICE UNDER ARTICLE 25 OF
THE INDIAN CONSTITUTION?
SHAYARA BANO v. UNION OF INDIA AND
ORS.
[AIR 2017 9 SCC 1 (SC)]
AUTHORED BY - NISHTHA GAUTAM* & PRACHI VASUDEV**
I.
Introduction
Triple Talaq, also known as talaq-e-biddat
or talaq-e-mughallazah, is a practice of Islamic divorce that has been
observed by Muslims in India for a significant period, particularly adherents
of the Hanafi Sunni Islamic schools of jurisprudence. It allows any Muslim man
to legally end his marriage by uttering the word “talaq” three times, in any
form—written, oral, or more recently, electronic—which immediately and
irrevocably dissolves the marital bond. Although this practice is sanctioned by
Section 2 of the Shariat Law and predominantly followed by Sunni Muslims, who
constitute the majority of India’s Muslim population, it does not find explicit
mention in the Holy Quran. This issue sparked widespread controversy,
especially with the escalating number of cases involving such divorces,
elevating it to a matter of national significance. However, there was no
resolution for the victims until Shayara Bano, one of the affected individuals,
filed a Public Interest Litigation (PIL) in the Supreme Court in 2016. In the
case of Shayara Bano v. Union of India[1],
the Supreme Court delivered a landmark verdict, invalidating the practice of
instant triple talaq or talaq-e-biddat. This practice had often been misused by
Muslim husbands to abruptly and irrevocably terminate their marital
relationships with their wives. The verdict was widely applauded, particularly
by women’s rights groups, as it was seen as a significant step toward achieving
gender equality in society. Another noteworthy aspect, albeit symbolic, is that
the bench which pronounced the judgment comprised judges from diverse religious
backgrounds.[2]
Personal laws govern an individual’s
rights and responsibilities in various areas such as succession and marriage,
based on their affiliation with a particular religion. While these laws apply
to followers of their respective religions, they do not apply uniformly.
Historically, men have been favored over women within the framework of personal
laws, perpetuating gender inequality in family and marital matters. Article 13
of the Indian Constitution stipulates that any law inconsistent with
fundamental rights shall be void to the extent of the inconsistency. However,
the Supreme Court has consistently ruled that personal laws do not fall under
the purview of Article 13. This judicial distinction upholds the “public-private
dichotomy”, allowing for gender-based discrimination within the private realm
of family affairs. Although the Supreme Court’s recent focus was on the
constitutionality of triple talaq under personal laws, its ruling has broader
implications for the reform of personal laws. While hailed as a progressive
step for Muslim women’s rights within marriage, the decision has also drawn
criticism for failing to apply fundamental rights protections to personal laws.
II.
Summary of the facts
The battle against triple talaq was
largely championed by women’s rights activists and media, but it was ultimately
sparked by the victims themselves. Shayara Bano, a 36-year-old woman from
Kashipur, Uttarakhand, played a pivotal role in challenging this patriarchal
tradition that had adversely affected countless Muslim women. In 2016, Bano
became the lead petitioner in the case, seeking to invalidate the talaq-e-biddat
pronounced by her husband, which abruptly ended their 15-year marriage in
October 2015. She argued that this unilateral and irrevocable form of divorce
violated the fundamental rights of Muslim women and should be deemed
unconstitutional. Bano’s husband, Rizwan Ahmad, had pronounced triple talaq
in the presence of witnesses and sent a talaqnama to her via speed post
on October 10, 2015. The primary writ petitions leading to the landmark
judgment were filed by Bano and Ishrat Jahan. They, along with other
petitioners, challenged the constitutional legitimacy and continuation of
practices like talaq-e-biddat, nikkah halala, and polygamy
permitted under the Muslim Personal Law (Shariat) Application Act, 1937, citing
Articles 14, 15, 21, and 25 of the Indian Constitution. While the Supreme Court
decided to address only the issue of triple talaq in this case, Chief Justice
Khehar noted that other issues would be addressed separately. Consequently, the
constitutional validity of talaq-e-biddat came under scrutiny before a
constitution bench comprising five judges of the Supreme Court.
III.
Brief Legal History of Triple Talaq in India
The Muslim Personal Law (Shariat)
Application Act, 1937, commonly known as Muslim Personal Law, governs the
religious aspects of Muslims in India, including marriage. However, if a
marriage falls under the Special Marriage Act of 1954, it is not governed by
Muslim Personal Law. Victims of triple talaq have approached the higher
judiciary numerous times, with the first notable case being Mohd. Ahmed Khan
v. Shah Bano Begum[3]
in 1985. In this case, Shah Bano, a 62-year-old Muslim woman with five
children, was divorced via triple talaq by her husband in 1978 when she was 40
years old. She filed a suit for maintenance under the Code of Criminal
Procedure in a trial court in 1980 and won the case. Khan, who was a lawyer
himself, challenged the trial court’s decision in the Supreme Court of India,
where Shah Bano once again emerged victorious. The Supreme Court ruled that the
Criminal Procedure Code was a secular law applicable to all religions and
emphasized the need for a Uniform Civil Code. However, due to political
considerations and pressure from Muslim clerics who viewed the ruling as
interference in religious practices, the then Prime Minister Rajiv Gandhi
succumbed to pressure and supported a bill introduced by an independent
parliamentarian. This led to the enactment of the Muslim Women (Protection of
Rights on Divorce) Act, 1986, which mandated that husbands pay alimony to their
wives only during the iddat period, nullifying the provisions of the Code of
Criminal Procedure for Muslim women.
In 2002, the case of Shamim Ara v.
State of U.P.[4]
presented a scenario similar to Shah Bano’s, involving triple talaq,
maintenance, and the applicability of Section 125 of the Criminal Procedure
Code (CrPC) to Muslim women. Despite arguments citing historical legal
precedents, including Privy Council decisions, that maintenance provisions
under Indian and Islamic jurisprudence do not apply to divorced wives due to
the validity of triple talaq, the two-judge bench expressed a progressive
stance. Justice Lahoti emphasized the need for a forward-looking interpretation
of laws, acknowledging societal progress. Citing the case of Bai Tahira v.
Ali Hussain Fidaalli Chothia[5],
the bench allowed maintenance and nullified the divorce, also outlining an
elaborate procedure similar to talaq-e-hassan for pronouncing a valid
talaq.
In 2002, the Bombay High Court set a
precedent in Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan[6]
by invalidating triple talaq, referencing the Quran. The court ruled that a
Muslim husband cannot unilaterally dissolve a marriage through triple talaq. It
outlined the necessary procedure for divorce, stating that mere statements or
documents like talaqnama are insufficient proof. Instead, divorce must
be proven under the Civil Procedure Code, 1908, and the Evidence Act, 1820.
This stance was reaffirmed by the Allahabad High Court in 2016 and the Supreme
Court of India in the landmark case of Shayara Bano v. Union of India in
2017.
IV.
Issues Involved
Issue 1: Is triple talaq
considered an essential religious practice in Islam?
Issue 2: Is the Muslim Personal Law
(Shariat) Application Act, 1937 (referred to as the ‘1937 Act’), considered to
endorse and enforce triple talaq as a legal principle to be adhered to by
Indian courts? If not, is the legal precedent that personal laws are exempt
from the provisions of Article 13(1) of the Indian Constitution, correct?
V.
Arguments
On behalf of the Petitioners:
Mr. Amit Chadha, representing Shayara
Bano, commenced his argument by asserting that triple talaq is not a recognized
form of divorce under the Muslim Personal Law (Shariat) Application Act, 1937.
He highlighted previous court decisions that limited the unilateral power of
Muslim men to divorce women and criticized triple talaq for lacking Quranic
sanction. The case of Sarabai v. Rabaibai[7]
was referred, where the court deemed triple talaq as “good law but bad
ideology.” Justice Krishna Iyer in the Kerala High Court initially raised
concerns about this practice, which led to various judgments against triple
talaq over the next two decades. Notably, in Nazeer v. Shemeema[8],
the Kerala High Court ruled that triple talaq in one utterance is not valid
according to Quranic injunction. Mr. Chadha urged the court to invalidate
triple talaq, arguing that granting uncodified power to Muslim men violates
Articles 14, 15, and 21 of the constitution. Referring to Supreme Court
precedents like Masilamani Mudaliar[9]
and others[10], he
contended that Muslim personal law should be considered “law in force” under
Article 13(1). The court’s duty, as established in Kesavananda Bharati[11]
and Minerva Mills[12],
is to intervene in cases of fundamental rights violations, particularly when
legislation is lacking due to political considerations. Mr. Chadha argued that
religious freedom, as stated in Article 25, is subject to other provisions in
Part III of the Constitution, while Articles 14 and 15 are not subject to such
restrictions. The argument posited that triple talaq is not safeguarded by
Article 25 of the Indian Constitution because it does not constitute an “essential
practice” of religion. Furthermore, he cited international treaties such as the
Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, and the Convention on the Elimination of All Forms
of Discrimination Against Women, emphasizing gender equality and human dignity.
Mr. Chadha highlighted that Muslim women were actively protesting against
triple talaq, suggesting that it does not align with prevailing social
conditions. He compared the abolition of triple talaq to the elimination of
practices like sati, devdasi, and polygamy in the Hindu community. Lastly, Mr.
Chadha proposed that if triple talaq is invalidated, the Dissolution of Muslim
Marriage Act, 1939 would apply uniformly to the entire Muslim community,
regardless of gender.
On behalf of the Respondents:
Mr. Kapil Sibal began by clarifying
that the Shariat Act, 1937, does not codify substantive Muslim personal law but
reiterates that Sharia shall be applied as a rule of decision to Muslims,
superseding any contrary customs or usages. He argued that the act aims to
overcome discriminatory customs against women, particularly in matters of
inheritance. Regarding marriage, he emphasized its status as a private contract
and sacred covenant in Islamic law, suggesting that state legislation cannot
alter it.
Referring to constituent assembly
debates, Mr. Sibal contended that personal laws were intentionally excluded
from the definition of law under Article 13 of the Constitution. He drew upon Narasu
Appa Mali[13]
and Ahmedabad Women Action Group[14]
cases to argue that the constitutionality of personal laws cannot be questioned
by the court. He distinguished between “laws” and “laws in force” in Article 13
and underscored that interference with triple talaq would require legislative
action, as evidenced by similar bans in other countries. Mr. Sibal asserted
that triple talaq, practiced for centuries, is an integral part of Sunni Muslim
personal law and thus protected under Article 25. He suggested that Article
25(2) empowers Parliament to enact social reform laws related to religious
practices. Consequently, the validity of such laws should be assessed by the
court only after Parliament passes relevant legislation.
He concluded by proposing options for
Muslim women to safeguard themselves against discriminatory use of triple
talaq, such as registering marriage under the Special Marriage Act, including
conditions in the nikah-nama, or delegating the right to talaq to herself. Mr.
Sibal argued that social reforms concerning personal laws should originate from
the community itself, and Indian state had followed a policy of non-interference
in personal law matters.
VI.
Judgment
On August 22, 2017, the Supreme Court
delivered a judgment on Triple Talaq, with a 3:2 majority ruling the practice
unconstitutional. Justice Nariman, on behalf of himself and Justice Lalit,
authored the majority opinion, which was also supported by Justice Joseph.
Chief Justice Khehar, along with Justice Nazeer, penned the minority opinion.
The majority concluded, after extensive deliberation, that Triple Talaq is not
an essential religious practice, while the minority viewed it as essential to
religion.
Hence, according to the majority
opinion, the practice of Instantaneous Triple Talaq, or Talaq-e-biddat, is not
protected under the exception provided in Article 25, as it was deemed not to
be an essential aspect of the Islamic religion. The court reasoned that while
it is practiced by the Hanafi School of Sunnis, it is considered sinful within
that school and completely prohibited in the Shia sect of Islam. Moreover,
Triple Talaq contradicts the fundamental teachings of the Quran, and anything
contrary to the Quran is deemed contrary to Shariat. Therefore, the majority
bench, drawing on its previous ruling in Shamim Ara v. State of U.P and
Anr., concluded that Triple Talaq is not only against Islamic theology but
also against the law. Just because it is followed by a significant number of
people does not validate its practice. As a result, the court declared this
practice unconstitutional and set it aside.
According to Article 25(1), only
essential religious practices are protected, and state intervention in such
practices would violate the rights guaranteed in Article 25(1). However,
non-essential practices are not protected. The fact that the majority of
Islamic countries have abolished the practice of Triple Talaq suggests that it
is not considered an essential religious practice. Article 25 guarantees the
right to freely practice and propagate any religion, with exceptions including
public order, health, morality, and other provisions of Part III of the
Constitution. While Triple Talaq may not relate to the first three exceptions,
it does violate Article 14, the fundamental right to equality, as it deprives
women of the right to participate in the divorce process, unlike in other
religions. Justices Nariman and Lalit held that this practice allows husbands
to dissolve marriages arbitrarily, without attempting reconciliation, thus
violating Article 14 and warranting judicial intervention. However, Justice
Khehar, in the minority opinion, argued that Triple Talaq is an essential
religious practice of Islam because it is followed by a significant portion of
the Muslim population and has the sanction of religious denomination.
Therefore, he deemed it constitutional.
VII.
Critical Analysis
Justice Nariman’s opinion, supported
by Justice Lalit, is pivotal in the judgment and sets the tone for the
decision. However, it reflects a reluctance to address the issue of gender
justice. Justice Nariman refrained from delving into the question of
discrimination, stating that since the court had already declared Section 2 of the
1937 Act void on the grounds of arbitrariness, there was no need to consider
discrimination. This approach aligns with the court’s historical tendency to
maintain a public-private dichotomy in implementing fundamental rights. Justice
Nariman’s view is criticized for its lack of progressiveness. He primarily
focused on the arbitrariness of talaq-e-biddat, emphasizing its
immediate severance of marital status without room for reconciliation. This
paternalistic approach prioritizes the protection of the marital institution
over gender justice concerns. His failure to address gender-based
discrimination in the context of personal laws reflects a broader judicial
attitude towards gender issues.
Justice Joseph’s approach to the
issue of talaq-e-biddat is criticized for framing the question solely in terms
of the interpretation of Shariat, ignoring the fundamental rights challenge. He
posed the question of whether talaq-e-biddat can be considered valid in
law despite being deemed incorrect in the Quran. Justice Joseph quickly
answered this by referring to the Shamim Ara[15]
case, which had already held that talaq-e-biddat lacked legal sanctity,
considering it a settled position of law in India under Article 141 of the
Constitution. However, this determination is questioned for two reasons.
Firstly, if Shamim Ara had already settled the issue, there would be no
need for the Supreme Court to re-examine it. Secondly, the observations in
Shamim Ara regarding talaq-e-biddat were not binding as they were made
in passing and were not central to the dispute. Justice Joseph’s approach is
criticized for being paternalistic and unclear. While he acknowledged the
Quranic stance on talaq-e-biddat, he focused on protecting the
institution of marriage rather than recognizing women’s rights within marriage.
The petitioners had sought equal rights within the family and marital
institution, not a declaration of Quranic dissolution methods for Muslim
marriage.
The opinion of Chief Justice Khehar
can be characterized as confusing and flawed. Initially, he acknowledged talaq-e-biddat
as a valid practice in Muslim law, but then stated that the Supreme Court is
not the appropriate forum to determine its conformity with accepted hadiths in
Islamic jurisprudence. Subsequently, he deemed talaq-e-biddat integral
to the religious practices of Sunni followers of the Hanafi school in India, as
it is sanctioned and approved by their religious denomination. Chief Justice
Khehar’s argument followed a similar line as in Narasu[16],
asserting that personal laws are protected under Article 25(1) of the
Constitution. However, he overlooked the restriction of Article 25 with respect
to “other provisions of Part III.” His focus on religious practices
overshadowed the question of equality within the private sphere of marriage. The
error in his judgment lies in its operational part. Despite declaring talaq-e-biddat
integral to the religious practices protected under Article 25, he granted
injunction from using triple talaq as a mode of divorce for six months
from the date of judgment and urged the Union of India to consider legislation
on the matter. This suspension effectively contradicted his earlier declaration
of its constitutionality.
VIII.
Implications of the Decision
Following the court’s directives, the
Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed in the
Lok Sabha on December 28, 2017. This bill criminalized triple talaq in any
form, imposing a maximum penalty of three years imprisonment for the husband
and incorporating various other remedial provisions. Subsequently, ordinances
in 2018 and 2019, as well as a bill in 2018, were passed, but none remained in
effect for long, as they lapsed with the dissolution of the 16th Lok Sabha.
Upon the re-introduction of the bill by the newly elected NDA government, it
was passed by the Lok Sabha on July 25, 2019, and by the Rajya Sabha on July
30, 2019, receiving the President’s assent. Despite significant opposition
nationwide regarding its legality and rationale, the bill ultimately became
law.
IX.
Conclusion
The triple talaq judgment stands as a
significant milestone in our legal landscape, particularly in private law.
Justice Joseph’s culturally grounded perspective showcased a nuanced
understanding, indicating a learning curve from past errors in personal law
cases. While the ruling didn’t offer explicit clarity on gender justice and
inequality in personal laws, it represents a step toward equality and sets a
precedent for future amendments. The subsequent enactment of the Muslim Women
(Protection of Rights on Marriage) Bill, 2017 criminalized the practice, albeit
raising concerns about its impact on marriage as a private institution.
An alternative approach could involve
declaring triple talaq as void and illegal, without imposing criminal
penalties. Instead, the magistrate could order compensation to the wife for any
mental anguish caused. Failure to comply with such orders could result in
penalties akin to those in the Domestic Violence Act. Additionally, addressing
polygamy is crucial, as it undermines the protection of women’s rights. The
legislature should consider incorporating civil safeguards against polygamy to
uphold the objectives of protecting Muslim women’s rights effectively.
** Advocate, Punjab and
Haryana High Court, Chandigarh.
[1] Shayara Bano v. Union of India,
(2017) 9 SCC 1.
[2] The Bench comprised of J.S. Khehar
(at that time Chief Justice of India), Kurian Joseph, Rohintan Nariman, U.U.
Lalit, and S. Abdul Nazeer, JJ. belonging to Sikh, Christian, Parsi, Hindu and
Muslim faiths respectively. Despite this plurality representing Bench, the
absence of a female justice is clearly evident.
[3] (1985) 2 SCC 556.
[4] (2002) 7 SCC 518.
[5] (1979) 2 SCC 316.
[6] 2002 SCC OnLine Bom 440: (2003) 1
Bom CR 740.
[7] (1906) 8 BOMLR 35.
[8] 2017 (1) KLT 300.
[9] (1996) 8 SCC 525.
[10] For instance, Danial Latifi v.
Union of India (2001) 7 SCC 740; Shah Bano and John Vallamatom v. Union of
India (2003) 6 SCC.
[11] (1973) 4 SCC.
[12] (1980) 3 SCC.
[13] The State of Bombay v. Narasu Appa
Mali, AIR 1952 Bom 84.
[14] Ahmedabad Women Action Group v.
Union of India, (1997) 3 SCC 573.
[15] (2002) 7 S.C.C. 518.
[16] AIR 1952 Bom 84.
Article Information
Case Commentary: Is Triple Talaq An Essential Religious Practice Under Article 25 Of The Indian Constitution? Shayara Bano V. Union Of India And Ors. [Air 2017 9 Scc 1 (Sc)]
Authors: Nishtha Gautam, Prachi Vasudev
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/24
- Issue 7
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International Journal for Legal Research and Analysis
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