Authored By: Riya Choudhary
Titel:- The Judicial Abolition of Instant Triple Talaq: Upholding Equality and Dignity.
Case Name:- Shayara bono v. Union of India
Citation:- (2017) 9 SCC 1
Court:- Supreme Court of India
Bench:- 5-Judge Constitutional Bench
Chief Justice J.S. Khehar, Justice Kurian Joseph, Justice R.F. Nariman, Justice U.U. Lalit, and Justice S. Abdul Nazeer
Decided on:- 22 August 2017
Case laws
- Articles 14 and 15 of the Constitution:
The petitioner argued that the practice of triple talaq violates Articles 14 and 15 of the Constitution, which guarantee equality before the law and prohibit discrimination based on religion or gender. The right to instant divorce was available only to Muslim men, allowing them to end a marriage arbitrarily, while women had no such right. This one-sided power was seen as discriminatory and against the principle of equality. The Court held that any law or custom violating fundamental rights under Part III must be struck down, following the doctrines of eclipse and severability.
- Article 25 of the Constitution:
The respondents argued that triple talaq is protected under Article 25, which ensures the freedom of religion. However, the Court clarified that this right is not absolute and is subject to public order, morality, and health. It observed that talaq-e-biddat is not mentioned in the Quran, nor was it practiced by the Prophet, and therefore cannot be considered an essential religious practice. The Court also noted that many Islamic countries have already abolished it, stating that a practice deemed sinful in religion cannot be upheld as valid in law.
Brief Facts
Shayara Bano, a Muslim woman, was married to Rizwan Ahmed for fifteen years. In 2016, her husband divorced her through the practice of triple talaq (talaq-e-biddat) without providing any reason. Following this, Shayara Bano filed a writ petition before the Supreme Court of India, questioning the constitutional validity of triple talaq, polygamy, and nikah halala, asserting that these practices violated the fundamental rights of Muslim women guaranteed under Articles 14, 15, 21, and 25 of the Constitution.
Several women’s rights groups, including BEBAK Collective and the Bhartiya Muslim Mahila Andolan, supported her petition. On the other hand, the All India Muslim Personal Law Board contended that Muslim personal law was uncodified, beyond judicial scrutiny, and that matters of divorce fell within the protection of religious freedom under Article 25.
The Supreme Court admitted the petition and constituted a five-judge constitutional bench in 2017. The hearings began on May 11, 2017, and the final verdict was delivered on August 22, 2017, marking a historic decision on the issue of triple talaq in India.
Arguments Raised by Petitioner
Mr. Amit Chadha, representing the petitioner, argued that the practice of triple talaq was not recognized under the Shariat Application Act, 1937, nor was it ever encouraged by the Prophet. He explained that this form of talaq developed merely as a customary practice based on misinterpretation and lacks any basis in the Quran. To support his argument, he referred to several previous cases where the legitimacy of this practice was questioned, including Shamim Ara v. State of Uttar Pradesh (2002), in which the Court laid down specific guidelines for a valid divorce. Mr. Chadha urged the Supreme Court to declare triple talaq unconstitutional, stating that it violates Articles 14 and 15 of the Constitution. He also pointed out that if triple talaq were prohibited, the Dissolution of Muslim Marriage Act, 1939 would serve equally for all members of the Muslim community, regardless of gender.
Arguments Raised by Respondent
The respondents were represented by Mr. Kapil Sibal, who contended that the Shariat Act of 1937 does not actually codify Muslim personal law but only provides guidance in cases where customs or usages conflict with Islamic principles. He further argued that, under Muslim law, marriage is considered a private contract and therefore should not be interfered with through legislation. Mr. Sibal highlighted that the definition of “law” under the Constitution does not include personal laws.
He also referred to Article 25 of the Constitution, explaining that it grants Parliament the power to enact laws for social reforms related to secular aspects of religion. Hence, according to him, the Court could examine the issue only if Parliament had passed a law on it. Addressing the question of discrimination against women, he stated that women have the right to safeguard themselves by registering their marriage, including clauses in the Nikahnama to restrict talaq-e-biddat, or by ensuring a higher amount of Mehr (dower) as protection.
Issue
- Whether the practice of talaq-e-biddat (instant triple talaq) forms an essential and integral part of Muslim personal law, and if so, whether it is protected under Article 25 of the Indian Constitution.
This issue raises the question of whether triple talaq can be considered a fundamental religious practice that falls under the freedom of religion guaranteed to all citizens. It also examines whether the practice is an inseparable part of Islam or merely a customary tradition that evolved over time without any true Quranic foundation.
- Whether the practice of triple talaq violates the fundamental rights guaranteed by the Constitution, and therefore, should be declared unconstitutional.
This issue focuses on whether talaq-e-biddat discriminates against Muslim women, denying them equality and dignity as protected under Articles 14, 15, and 21 of the Constitution. It questions if this form of divorce, which allows unilateral and instant separation by the husband, is inconsistent with the principles of justice, gender equality, and the right to live with self-respect.
Ratio
Justice R.F. Nariman and U.U. Lalit declared triple talaq unconstitutional, holding that it is manifestly arbitrary and violates Article 14 as it allows a husband to end a marriage unilaterally without giving the wife any say. They further stated that essential religious practices under Article 25 are only those that form the foundation of religion, and talaq-e biddat does not qualify as one. Both judges also pointed out that several Islamic countries have already abolished this practice, proving it is not essential to the faith.
Justice Kurian Joseph agreed with the majority, emphasizing that triple talaq has no sanction in the Quran and is therefore invalid. He observed that what is considered wrong in religion cannot be justified in law, drawing a parallel to practices like sati that were later abolished.
On the other hand, Chief Justice J.S. Khehar dissented, holding that Muslim personal law is not enacted by the State and therefore cannot be tested on the grounds of fundamental rights. However, Justice Nariman countered this view by noting that since talaq is mentioned in the Shariat Act of 1937 and the Dissolution of Muslim Marriage Act, 1939, it falls within the ambit of state law and can indeed be reviewed by the Court.
Judgement
The Supreme Court’s five-judge constitutional bench delivered its verdict in favor of Shayara Bano and others, declaring the practice of triple talaq (talaq-e-biddat) unconstitutional by a 3:2 majority. The Court also urged the legislature to enact appropriate laws to prevent the misuse of this practice and to ensure protection for Muslim women from such arbitrary divorces.
While pronouncing the judgment, the Court observed that although triple talaq is commonly practiced under the Hanafi School of Islamic law, it is considered sinful and irregular even within Islamic traditions. The bench also noted that several Muslim-majority countries across the world have already abolished the practice, recognizing that it has no basis in the Quran and was neither endorsed nor practiced by the Prophet.
The Court ultimately held that talaq-e-biddat violates the fundamental rights guaranteed under Part III of the Indian Constitution, particularly the rights to equality, non discrimination, and dignity.
