Authored By: TANISHKA RAJPUT
ASIAN LAW COLLEGE
Introduction
The case of Shayara Bano v. Union of India is a watershed moment in the Indian legal system, representing the clash between religious personal laws and fundamental constitutional rights. It marked a turning point in Muslim personal law and underscored the urgent need for reform in matters of marriage and divorce. The case addressed the constitutionality of Talaq-e-Biddat (instant triple talaq), which allowed a Muslim man to divorce his wife by simply pronouncing “talaq” three times in one sitting, without any scope for reconciliation.
This case is not just about personal law, but also about the intersection of religion, gender equality, and the rule of law in a secular state. It challenged the boundaries of judicial review over religious practices and emphasized the application of constitutional morality.
The Background of Case
Shayara Bano was married for 15 years when her husband unilaterally divorced her through Talaq-e-Biddat in 2016. She filed a writ petition under Article 32 in the Supreme Court, seeking to invalidate the practices of:
Talaq-e-Biddat (instant triple talaq) Nikah Halala (marrying another man and divorcing him to remarry former husband) Polygamy She claimed these practices violated her fundamental rights to equality, non-discrimination, life and personal liberty, and were not essential practices of Islam. The case was clubbed with similar petitions filed by other Muslim women and was treated as a matter of constitutional importance.
Legal Issues Involved
The case posed several complex constitutional and jurisprudential questions:
- Whether Talaq-e-Biddat is an essential religious practice under Article 25 and thus immune from judicial scrutiny?
- Can personal laws be tested on the touchstone of fundamental rights (Articles 14, 15, and 21)?
- Whether the practice of triple talaq amounts to arbitrary and discriminatory action violating Article 14?
- Whether Article 13 applies to uncodified personal laws?
- What is the scope of judicial review in matters of religion and personal law?
Arguments by the Petitioner (Shayara Bano)
Violation of Article 14: The practice is manifestly arbitrary, as it gives unbridled power to the husband without offering recourse or defense to the wife.
Violation of Article 15(1): It results in discrimination on the basis of sex, as it exclusively empowers men to unilaterally dissolve a marriage.
Violation of Article 21: It affects a woman’s dignity, personal liberty, and security. Sudden, unjustified divorce leaves her socially and economically vulnerable.
Not an essential practice: Talaq-e-Biddat is not prescribed in the Quran and has been condemned in several Islamic countries including Pakistan and Bangladesh.
Customs vs. Constitution: No religious or customary practice can override constitutional rights in a secular nation.
Arguments by the Respondents
- Union of India:
Supported the petitioner’s view.
Argued that gender justice is integral to secularism and constitutional morality.
Claimed that Parliament has the right to reform personal laws to ensure equality.
- All India Muslim Personal Law Board (AIMPLB):
Defended triple talaq as part of the Shariat and hence protected under Article 25.
Argued that personal laws are not “laws” under Article 13 and thus not subject to fundamental rights.
Claimed any interference would violate the community’s religious autonomy and set a dangerous precedent.
Cited the 1952 Narasu Appa Mali case to argue that courts cannot test personal laws against the Constitution.
Supreme Court Judgment
Bench Composition:
Chief Justice J.S. Khehar
Justice Kurian Joseph
Justice R.F. Nariman
Justice U.U. Lalit
Justice Abdul Nazeer
Verdict: 3:2 majority
Majority Opinion (Nariman, Lalit, Joseph JJ):
Held Talaq-e-Biddat to be unconstitutional and void.
Found the practice to be arbitrary, violating Article 14.
Declared it not essential to Islam; hence, it is not protected under Article 25.
Applied the doctrine of manifest arbitrariness (as laid down in K.S. Puttaswamy and McDowell’s case).
Minority Opinion (Khehar CJ, Nazeer J):
Agreed that Talaq-e-Biddat is undesirable but held it constitutionally protected under Article 25.
Recommended Parliament to legislate on the matter within 6 months.
Suggested a temporary injunction on its practice until law is enacted.
Post-Judgment Developments
In 2019, the Indian Parliament passed:
The Muslim Women (Protection of Rights on Marriage) Act, 2019:
Declares Talaq-e-Biddat as illegal and void.
Makes it a cognizable offence (police can arrest without warrant) with up to 3 years imprisonment.
Provides subsistence allowance to the wife and custody of minor children.
Applies only to instant triple talaq, not to other forms like Talaq-e-Hasan or Ahsan.
Legal Significance of the Case
Set a constitutional precedent that personal laws are not immune from judicial review.
Reasserted constitutional supremacy over all religious practices.
Opened the door for reforms in personal laws, especially related to marriage, divorce, and inheritance.
Strengthened the doctrine of essential religious practices.
Reinforced gender justice as part of constitutional morality.
Recognized that the state has a positive obligation to protect women’s rights within religious frameworks.
Doctrines and Constitutional Articles Applied
Legal Principle Application
Article 14 Triple talaq struck down as manifestly arbitrary and discriminatory
Article 15(1) Highlighted discrimination based on sex in divorce laws
Article 21 Emphasized women’s dignity and right to life with respect
Article 25 Religious freedom subject to public order, health, morality
Article 13 Personal laws tested against the Constitution
Article 32 Writ petition filed for enforcement of fundamental rights
Doctrine of Essential Practice used to assess whether triple talaq was essential to Islam
Doctrine of Manifest Arbitrariness A law/practice can be struck down if it is capricious and lacks reason
Article 44 Directed the state to work towards a Uniform Civil Code
Critical Analysis
The Shayara Bano verdict is celebrated for advancing constitutionalism, gender equality, and judicial activism. However, it has sparked debates:
Positives:
Bold stand against patriarchal customs.
Asserted women’s right to equality and dignity.
Reinforced the need for legal reform within religion.
Paved way for future reform of personal laws (like Hindu and Christian laws earlier).
Criticism:
Dissenting judges warned against judicial interference in religious practices.
The 2019 Act criminalizes a civil wrong, potentially leading to misuse or breakdown of marital reconciliation.
Some scholars argue this reflects majoritarian overtones against minority practices.
Despite these critiques, the case is a milestone for progressive jurisprudence, emphasizing that religious freedom does not permit inequality or arbitrariness.
Table of Cases Cited(OSCOLA Format)
- Shamim Ara v State of Uttar Pradesh (2002) 7 SCC 518
- Daniel Latifi v Union of India (2001) 7 SCC 740
- State of Bombay v Narasu Appa Mali AIR 1952 Bom 84
- Bijoe Emmaneul v State of Kerala (1986) 3 SCC 615
- S R Bommai v Union of India (1994) 3 SCC 1
- Indian Young Lawyers Association v State of Kerala (2018) 10 SCC 689
Conclusion
The Shayara Bano case stands as a monumental verdict that reiterates the power of the Constitution to uphold individual rights over outdated customs. It was a judicial intervention in defense of women’s rights, setting the tone for reformist jurisprudence. It balances faith with fundamental rights, emphasizing that no custom or tradition can be above the Constitution. This decision lays the foundation for future legal and social reforms in a modern democratic India.
