Shayara Bano v. Union of India & Others, AIR 2017 SC 4609

Court: Supreme Court of India 

Bench: J.S. Khehar (CJI), S. Abdul Nazeer, U.U. Lalit, R.F. Nariman & Kurian Joseph, JJ. Provisions Involved: Articles 13, 14, 15, 21, 25, 26, 29, 32, 44 & 142 of the Constitution;  Muslim Personal Law (Shariat) Application Act, 1937; Dissolution of Muslim Marriages Act,  1939.  

Judgment Date: 22 August 2017 

Petitioner: Shayara Bano, a Muslim woman divorced through instant triple talaq after 15  years of marriage, alleging violation of fundamental rights.  

Respondents: Union of India, All India Muslim Personal Law Board (AIMPLB), and others  defending long-standing personal law practices. 

MATTER OF FACTS: 

Shayara Bano had been married for approximately 15 years when, in 2015, she was divorced  through talaq-e-biddat.  

The petitioner challenged her divorce through talaq-e-biddat an irreversible dissolution by  uttering “talaq” thrice in one sitting. 

1. Multiple petitions raising broader issues of polygamy and nikah halala were tagged  together. 
2. However, the Court confined adjudication solely to the constitutionality of talaq-e biddat. 
3. The case invoked constitutional guarantees under Articles 14, 15 & 21, competing  with religious freedom under Article 25. 

The Court later narrowed the scope of the hearing exclusively to the constitutional validity of  talaq-e-biddat and formed a five-judge Constitution Bench. 

Issues Raised: 

1. Whether talaq-e-biddat is an “essential religious practice” protected by Article 25? b. Whether the practice violates Articles 14, 15 and 21 due to arbitrariness and gender  discrimination? 
2. Whether Muslim personal law is immune from Part III scrutiny under Article 13? d. Whether statutory recognition through the Shariat Act, 1937 allows judicial review? 

Arguments of the Parties: 

Petitioner’s Contentions 

• Arbitrary and irreconcilable divorce violates Article 14. 
• Unequal power structure in marriage amounts to sex-based discrimination under  Article 15. 
• Dignity of women & security in marriage forms part of Article 21 protections. • The practice: 

o is theologically condemned, 

o absent in the Quran, and 

o abolished in many Muslim-majority jurisdictions, hence not essential to Islam  under Article 25.  

Respondents’ Contentions 

• Personal law not equal to “law” within Article 13, immune from constitutional  review. 
• Despite being “sinful,” the practice forms part of accepted Hanafi tradition, protected  under Article 25. 
• Any reform should be left to the legislature, not judicial interference.  

Judgment: 

Minority Opinion (CJI Khehar & J. Abdul Nazeer) 

The minority held that talaq-e-biddat formed part of the Hanafi school’s accepted legal  tradition and was thus protected under Article 25. They also maintained that personal laws  could not be constitutionally reviewed under Article 13. 

Although they upheld the practice, they invoked Article 142 to temporarily suspend its  operation for six months and recommended that Parliament enact a law regulating divorce.  

Ratio Decidendi: 

Majority Opinion 

The majority comprised two separate opinions: 

1. Justices R.F. Nariman & U.U. Lalit – Unconstitutionality under Article 14 

• The judges held that the 1937 Shariat Act gave statutory backing to Muslim personal  law. 
• Because talaq-e-biddat derived recognition from this statute, it could be examined  under Article 13. 
• The practice was deemed “manifestly arbitrary” since it enabled unilateral termination  of marriage without reason or procedure, violating Article 14. 
• Consequently, Section 2 of the 1937 Act was struck down insofar as it validated talaq e-biddat.  

2. Justice Kurian Joseph – Invalidity under Islamic Law Itself 

Justice Kurian concurred with the result but relied on different reasoning: • He agreed that personal law itself was not subject to Article 13.

CASE SUMMARY 

• He interpreted the Shariat Act to mean that only authentic Quranic principles  constituted Muslim personal law. 
• After analysing Quranic verses, he held that Islam mandated attempts at reconciliation  and a structured divorce process—making instantaneous triple talaq Quranically  impermissible. 
• What is “bad in theology,” he concluded, cannot be upheld as valid Shariat.  Thus, by a 3:2 majority, instant triple talaq was invalidated. 

Minority Opinion (Khehar, CJI & Nazeer, J.) 

• Upheld the practice as protected religious custom beyond Article 13 scrutiny. • Exercised Article 142 to suspend triple talaq for six months, urging Parliament to  legislate reforms. 

Conclusion 

This verdict is widely regarded as a milestone for women’s rights in India. It dismantled a  practice that placed Muslim women in a vulnerable position and affirmed the constitutional  vision of equality and dignity beyond religious boundaries. 

The decision also revived several constitutional debates—most notably the extent to which  personal laws can be scrutinised by courts. Justice Nariman’s interpretation concerning  statutory recognition of personal law marks a significant development, broadening the scope  for challenging discriminatory personal-law practices in the future. 

Justice Kurian’s reasoning, rooted in Quranic principles, offered an internalist approach,  showing that religious freedom and gender justice need not be in conflict. 

While the decision does not conclusively resolve the question of whether uncodified personal  law is subject to fundamental rights, it firmly establishes that no practice—religious or  otherwise—can override constitutional values of equality and human dignity.