Shayara Bano v. Union of India & Ors.

Case Name : Shayara Bano v. Union of India & Ors.

Citation: (2017) 9 SCC 1

AIR: 2017 SC 4609

Writ Petition (Civil) No. 118 of 2016

Date of judgement : August 22, 2017

Bench Composition

Five-Judge Constitutional Bench:

• Chief Justice J.S. Khehar
• Justice Kurian Joseph
• Justice R.F. Nariman
• Justice U.U. Lalit
• Justice S. Abdul Nazeer

Facts of the Case :

• Petitioner: Shayara Bano, a Muslim woman from Kashipur, Uttarakhand, married in 2002.
• Incident: In October 2015, Shayara Bano’s husband divorced her through triple talaq by sending a written talaqnama (divorce notice), pronouncing “talaq” three times simultaneously (as practiced in Islam).
• Background: The petitioner alleged cruelty, domestic violence, and deprivation of basic necessities by her husband and in-laws.
• Additional Petitioners: Several other Muslim women who faced similar situations joined as co-petitioners, challenging the validity of triple talaq, polygamy, and nikah halala.
• Nature of Challenge: The petition challenged these practices as violative of fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Indian Constitution.

Issues Raised

• Whether triple talaq (talaq-e-biddat) is an integral part of Islamic faith and protected under Article 25 (Right to Freedom of Religion)?
• Whether triple talaq violates the fundamental rights under Articles 14 (Right to Equality) and 21 (Right to Life and Personal Liberty) of the Constitution?
• Whether the practices of polygamy and nikah halala are constitutionally valid?
• Whether the court can interfere with Muslim personal law, which is governed by the Shariat Act, 1937?
• Whether the practice of triple talaq is arbitrary, discriminatory, and manifestly unjust to Muslim women?

Arguments of the parties :

Arguments by Petitioners (Shayara Bano & Others):

• Violation of Fundamental Rights: Triple talaq violates Articles 14, 15, 19, and 21 by denying equality, dignity, and justice to Muslim women.
• Arbitrary Practice: The practice is arbitrary, irrational, and allows a husband to unilaterally dissolve marriage without any reasonable cause or opportunity for reconciliation.
• Gender Discrimination: Triple talaq discriminates against women as only men can pronounce it, making it manifestly unequal.
• Not Essential to Religion: The practice is not an essential or integral part of Islamic faith. Many Islamic countries have abolished or reformed triple talaq.
• Violates Quranic Principles: The instant triple talaq contradicts the Quran’s emphasis on justice, and procedural fairness in divorce.
• International Practice: Countries like Pakistan, Bangladesh, and several Middle Eastern nations have banned or restricted triple talaq.

Arguments by Respondents (Union of India & Muslim Organizations):

• Protected Personal Law: Muslim personal law is protected under Article 25 and should not be subject to judicial interference.
• Religious Freedom: Triple talaq is part of Muslim personal law derived from the Shariat and is protected as a religious practice.
• Legislative Domain: Any reform in personal laws should come through legislation, not judicial intervention, respecting the separation of powers.
• Community Rights: The Muslim community has the right to follow their personal law without state interference.
• Union’s Position: The Union of India supported the abolition of triple talaq, stating it violates gender equality and constitutional morality.

Ratio Decidendi (Legal Reasoning) :

Majority Opinion (3:2) – Justices Kurian Joseph, R.F. Nariman & U.U. Lalit:

• Justice Kurian Joseph: 

Give his reason saying that –

• Triple talaq is not protected by Article 25 as it is not an essential religious practice.
• The practice violates the principles of the Quran and Shariat.
• Even if considered part of personal law, it must conform to fundamental rights under Part III of the Constitution.

• Justice R.F. Nariman  and Justice U.U. Lalit : 

They had their reason these are as follows –

• Triple talaq is manifestly arbitrary and violates Article 14 (Right to Equality).
• The practice is not protected under Article 25 as it is not an integral part of religious practice.( same as Justice kurian joseph)
• Cited the test of  “arbitrariness” – triple talaq is capricious, whimsical, and allows a husband to break marriage without any rational basis.
• The practice is clearly against the basic dignity of women guaranteed under Article 21.

Minority Opinion (2 judges) – Chief Justice J.S. Khehar & Justice Abdul Nazeer:

• Recognized triple talaq as part of Muslim personal law but suggested a six-month moratorium for Parliament to enact appropriate legislation.
• Held that triple talaq, though undesirable, is part of personal law and should be reformed through legislative action rather than judicial decree.

Obiter Dicta (Observations)

• On Polygamy and Nikah Halala: The Court did not strike down these practices, stating they required separate examination and were not the primary focus of this case.
• Constitutional Morality: Justice Nariman observed that personal laws must conform to constitutional morality and cannot claim immunity from fundamental rights merely because they are religious practices.
• Reform and Legislation: The Court observed that while judicial intervention was necessary in this case, comprehensive reform of personal laws should ideally come through legislative action with community consultation.
• International Precedents: The judgment noted that several Islamic countries have abolished or reformed triple talaq, indicating it is not universally accepted as an essential Islamic practice.
• Gender Justice: The Court emphasized that gender justice and dignity of women cannot be compromised in the name of religion or personal law.

Judgment and Conclusion :

Decision:

The Supreme Court, by a 3:2 majority, declared triple talaq (talaq-e-biddat) as unconstitutional, void, and not protected by Article 25 of the Constitution.

• Triple talaq is struck down as it violates Article 14 (equality) due to its manifest arbitrariness.
• Not an essential practice: Triple talaq is not an integral part of Islamic religious practice and hence not protected under the right to freedom of religion.
• Immediate Effect: The practice was declared void and unenforceable immediately upon the judgment.
• Limited Scope: The judgment was confined to triple talaq only; polygamy and nikah halala were not addressed.

Subsequent Developments:

Following this judgment, the Indian Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which:

• Made triple talaq a criminal offense punishable with imprisonment up to three years
• Provided for maintenance and custody rights for divorced women and their children

Significance:

• Landmark for Gender Justice: The case is a milestone in protecting Muslim women’s rights and ensuring gender equality.
• Balance of Rights: It established that fundamental rights override personal law practices that are arbitrary and discriminatory.
• Constitutional Supremacy: Affirmed that religious practices must conform to constitutional values of equality and dignity.
• Social Reform: The judgment catalyzed broader discussions on uniform civil code and reform of personal laws in India.

This judgment remains one of the most significant pronouncements on the intersection of personal law, religious freedom, and fundamental rights in Indian constitutional jurisprudence.

Reference(S):

SOURCES –

Shayara bano vs union of India ,(2017)SC 4609

India Const. art.14 (right to equality )

India Const. art.15 (Prohibition of discrimination )

India Const. art.19 (freedom of speech and expression )

India Const. art.21 (right to life and personal liberty )

India Const. art.25 (right to freedom of religion )

Indian kanoon , shayara bano vs union of inida & ors ,https://indiankanoon.org/doc/115701246/

Mahesh mahendiratta , shayara bano vs union of India, https://blog.ipleaders.in/shayara-bano-v-union-of-india/