Case Brief on "Shayara Bano & Ors. V. UOI & Ors." by Nidhi Martand

By NIDHI MARTAND

COURSE: B.B.A.LL.B

SEMESTER: 3^RD SEM

COLLEGE NAME : ARMY LAW COLLEGE , PUNE

 

SHAYARA BANO & ORS. V. UNION OF INDIA & ORS.

 

CASE NAME :  Shayara Bano & Ors. V. Union Of India & Ors.

CITATION : AIR 2017 9SCC 1 (SC)

PARTIES INVOLVED : Shayara Bano & Ors. , All India Muslim Personal Law Board (AIMPLB), Union Of India .

BENCH : Justice Jagdish Singh Khehar , Justice S. Abdul Nazeer , Justice Rohinton Fali Niraman , Justice Uday Lalit , Justice K.M.Joseph.

DATE OF JUDGEMENT: 22^ND AUG 2017

SUMMARY OF FACTS :

In the case Shayara Bano & Ors. V. Union of India , Shayara was a muslim woman , married to Rizwan Ahmed for 15 years. In 2016 , Rizwan , through TALAQ-E-BIDDAT (instantaneous triple talaq ) divorced Shayara by pronouncing the word “ TALAQ ” thrice in the company of two witnesses and later presented the “ talaqnama ” to Shayara.

Aggrieved by the very fact that she had no say in her own divorce , Shayara filed a writ petition in the Supreme Court Of India , pleading to hold “Talaq-e-biddat” , “Polygamy” , and “Nikah Halala” , these three practices UNCONSTITUTIONAL as they violate the fundamental rights of a person , under Article 14, 15, 21 and  25, enshrined in the Constitution of India.

“Talaq-e-biddat” is one of the three male initiated divorce in the muslim community , and the other two are “Talaq Ahasan” & “Talaq Hasan”.Commonly known as “Triple Talaq”, it is a form of Islamic divorce used by Muslims in India to end the ties of marriage .It is a form of divorce practiced in Muslims whereby the husband can give divorce to his wife by pronouncing Talaq three times .Here the means of communication could be in any form like written , oral or even electronic .

“Nikah Halala” , also known as Tahleel marriage , is a practice in which, after being divorced through triple talaq , a woman marries another man , consummates the marriage , and gets divorced again in order to be able to remarry her former husband. Nikah means marriage and Halala means to make something halal , or permissible.

Polygamy is the practice of marrying multiple spouses. When a man is married to more than one wife at the same time ,it is known as Polygamy.

 The Supreme Court Of India , on 16 th Feb 2017, asked Shayara Bano , the Union of India , various women’s rights bodies and All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of Talaq-e-biddat , Nikah halala and Polygamy.

A key player defending the practice of triple talaq was the All India Muslim Personal Law Board (AIMPLB) who 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, whereas the Union Of India and the women rights organisations like Bharatiya Muslim Mahila Andolan and Bebaak Collective , supported Ms. Bano’s plea that these practices are unconstitutional.

ISSUES OF THE CASE

1) Whether the practice of talaq-e-biddat (specifically instantaneous triple talaq ) an essential practice of Islam?

2) Whether the practice of triple talaq violates any fundamental rights?

ARGUMENTS OF PETITIONER (SHAYARA BANO)

In Shayara Bano V. Union of India ,  Mr. Amit Chadha, the lead attorney representing Shayara Bano first argued that triple talaq is not a form of divorce recognized by the Muslim Personal Law of 1937 (Shariat). He pointed out that some decisions of the high court and the Supreme Court restricted the unilateral divorce of women and Muslims and criticized the practice of triple talaq without Quranic sanctions. Furthermore, these judgments confirm that the Quran allows divorce on reasonable grounds in the case of previous attempts to reach an agreement. He urged the court to abolish the triple talaq because the non-codified power that allowed Muslims to divorce violated articles 14 and 15 of the Constitution. Finally, he suggested that if the triple talaq were abolished, the Muslim Divorce Law would become the Muslim Marriage Dissolution Law of 1939, which can be applied equally to the entire Muslim community regardless of gender.

 

ARGUMENTS OF THE RESPONDANT

In the Shayara Bano v. Union of India case, Kapil Sibal first clarified that the Islamic Sharia law of 1937 did not codify substantive Muslim personal law, but reiterated that Sharia law will be applied as a decision rule that transcends custom or the opposite muslim. He stated that the purpose of the law is to overcome discrimination against women on inheritance issues. In addition, since marriage is a private contract and Islamic law, no state law can change it. Mr. Sibal referred to the debate in the Constituent Assembly and argued that the definition of law under Article 13 does not include personal rights . He suggested that personal law, and Article 13 on exclusion from the same list indicates that the constitution maker intends to exclude personal law. He can invoke the right to freedom of religious activity under article 25, paragraph 2. He believes that the Constitution authorizes Parliament to formulate a social reform law on secular activities related to religious activities. Therefore, only after the parliament passes a law on this issue, the court can assess its effectiveness. Mr. Sibal said that temple fundraising is an example of this kind of secular activity. Mr. Sibal summarized his argument and pointed out that Muslim women are not discriminated against under the Triple Talak rule and can even get immediate relief from a bad marriage. She proposed four options for Muslim women to protect themselves from triple talaq discrimination:

·       You can register your marriage under the 1954 Special Marriage Law.

·       You can add a condition in nikahnama that prohibits your husband from practicing triple tarak.

·       She can entrust Talak's rights to herself and he can insist on paying a lot of Mehar to avoid triple talak practice.

 

THE RULES AND LAWS

1 )THE CONSTITUTION OF INDIA 1949

·       ARTICLE 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.

·       ARTICLE 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

 (a) access to shops, public restaurants, hotels and palaces of public entertainment; or

 (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

 (3) Nothing in this article shall prevent the State from making any special provision for women and children

 (4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

·       ARTICLE 21-  Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

·       ARTICLE 25-  Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

 (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

 (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus, Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion, Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

 

2 ) THE MUSLIM PERSONAL LAW (SHARIAT)APPLICATION ACT, 1937

3 ) THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2018

 

JUDGEMENT BY THE COURT

Ruling: Shayara Bano v. Union of India On August 22, 2017, five Supreme Court justices ruled in the Triple Talak case and declared this practice unconstitutional by a 3: 2 majority. After the two sides debated for 6 days , the case was heard in court. The court ordered parliament to take legislative action against the triple talaq. Judges Rohinton Nariman and Uday Lalit held that talaq ebiddat is subject to Muslim Personal Law No. 8 of 1937 (Islamic Law). They consider this practice to be unconstitutional because it is obviously arbitrary in nature. On the other hand, Judge Kurian Joseph noted in the consent letter that the triple talaq violated the Qur'an and therefore lacked legal sanctions. He wrote: "What is considered bad in the Qur'an cannot be good in Islamic law, and what is bad in theology is also bad in law." minority and attributed the promotion of individual rights to fundamental rights in the debate on articles 25 and 44 of the Constituent Assembly. They believe that the triple talaq is not subject to Islamic law. In 1937, it became an inherent part of personal law. Therefore, it is protected by Article 25. In addition, addressing gender discrimination in talaq ebiddat is a legislative action, not a challenge to its constitutionality.