Triple Talaq on Trial: Constitutional Morality vs Religious Freedom in Shayara Bano v. Union of India

Case Name: Triple Talaq on Trial: Constitutional Morality vs Religious Freedom in  Shayara Bano v. Union of India 

Citation – (2017) 9 SCC 1  

Court – Supreme Court of India  

Bench – CJI J.S. Khehar, Kurian Joseph J., Rohinton F. Nariman J., U.U. Lalit J., S.  Abdul Nazeer J. 

Date – 22 August 2017  

INTRODUCTION  

Shayara Bano v. Union of India (2017) 9 SCC 1 is a landmark case in Constitutional law  which deals with the constitutional validity of instant triple talaq system which was practiced  under Muslim law. The case reached the Court through a writ petition under Article 32, and it  challenged that the practice of triple talaq violated the fundamental rights of Muslim Women.  It raised an important question about whether religious freedom under Article 25 was more  important than the rights to equality under Article 14 and dignity under Article 21. The case  is important because it examined whether personal law practices can be tested against  constitutional principles.  

FACTS:  

Shayara Bano, a Muslim woman, filed a writ petition under Article 32 challenging the  legality of the practice of talaq-e-biddat (instant triple talaq),  

Bano, the petitioner, was married in 2002. In October 2015, her husband, Rizwan Ahmad,  initiated an instant divorce (talaq-e-biddat) by pronouncing ‘talaq’ three times at once. 

After the divorce, she filed a writ petition in the Supreme Court under Article 32 in 2016.  She challenged the constitutional validity of the practices of instant triple talaq (talaq-e 

biddat), Nikah-Halala (a practice where a divorced woman must marry another man and  consummate that marriage before she can remarry her former husband), and Polygamy,  and prayed that these practices should be declared unconstitutional.  

Along with Bano’s petition, several other petitions regarding similar issues about triple  talaq were also filed by different individuals and organizations. All these petitions were  considered together by the Court.  

The petitioners argued that instant triple talaq is not an essential part of Muslim personal  law and that it violates fundamental rights under Articles 14, 15, and 21. The Union of  India supported the petitioners and argued that such practices are not essential religious  practices and can be tested on constitutional grounds.  

The All India Muslim Personal Law Board opposed the petitioners, and argued that talaq e-biddat is part of Muslim personal law and it is protected under Article 25 (Freedom of  conscience and free profession, practice and propagation of religion). 

The matter was heard by a five-judge Constitution Bench after detailed arguments from  both sides. 

ISSUES:  

1. Whether talaq-e-biddat (instant triple talaq) is an essential religious practice protected  under Article 25 of the Constitution?  
2. Whether the practice of instant triple talaq violates fundamental rights under Articles  14, 15, and 21 of the Constitution?  
3. Whether Muslim personal law, as recognized under the Muslim Personal Law  (Shariat) Application Act, 1937, is subject to constitutional scrutiny?  
4. Whether the Supreme Court has the authority to intervene in matters related to  personal law on the ground of constitutional morality?  

ARGUMENTS OF THE PARTIES  

Petitioner’s Arguments  

• The petitioners argued that talaq-e-biddat is arbitrary because it allows the husband to  initiate divorce without reason, procedure, or without any attempts towards reconciliation.
• It violates Article 14 because it treats women unequally and gives unilateral power to  men.  
• It violates Article 21 as it affects the dignity and security of Muslim women. 
• The petitioners argued that not all religious practices are protected under Article 25. Only  the practices that are an essential part of Islam protected.  
• They argued that triple talaq is not an essential part of Islam and is actually considered  sinful in Islamic Law too. They also argued that Triple talaq is already considered illegal  in many Muslim majority nations, including Pakistan, Bangladesh, Egypt, Saudi Arabia  and the UAE.  
• The Muslim Personal Law (Shariat) Application Act, 1937 gives legal recognition to such  practices, making them subject to constitutional review.  
• The concept of constitutional morality must be given more importance over social or  religious practices that violate fundamental rights.  

Respondent’s arguments  

• The respondents were represented by Senior Advocate Mr. Kapil Sibal. He argued that  talaq-e-biddat is part of Muslim personal law and is protected under Article 25.
• He also stated that the Shariat Act does not fully codify Muslim personal law and it only  provides rules which must be followed in cases where customs differ.  
• It was argued that marriage (Nikah) in Muslim law is a private contract, and therefore it  should not be questioned by courts or legislation.  
• He also argued that personal laws are not included in the definition of “law” under the  Constitution, and thus they cannot be challenged for violating fundamental rights. 
• It was emphasized that courts should not interfere in matters of religion, and any changes  or reform in personal law should be done by the legislature, not the judiciary.
• It was contended that India follows legal pluralism, meaning that different communities  are governed by their own personal laws.  
• On the issue of discrimination, the respondents argued that women have options to protect  themselves, such as registering their marriage, adding conditions in the Nikahnama to  restrict triple talaq, or demanding a higher amount of mehr (dower). 

JUDGMENT  

• The Supreme Court, by a 3:2 majority, held that the practice of instant triple talaq (talaq e-biddat) is unconstitutional and void, as it violates fundamental rights.
• The petition filed by Shayara Bano was allowed, and the practice of instant triple talaq  was declared unconstitutional.  
• The Court also issued a direction that restrained Muslim husbands from pronouncing  instant triple talaq for six months and directed the Central Government to consider  passing an appropriate legislation on the matter.  

REASONING OF THE COURT  

Majority Opinion:  

• Justice Rohinton Nariman, along with Justice U.U. Lalit, held that the Muslim Personal  Law (Shariat) Application Act, 1937 is a “law in force”. This means it can be examined  under the Constitution. So, practices like triple talaq that are recognized under this law  can be reviewed by the Court under the Judicial Review provision.  
• The Court then examined whether talaq-e-biddat is an essential part of Islam under  Article 25. The Court referred to Islamic teachings and earlier cases. It found that instant  triple talaq is not an essential religious part of Islam, and it is neither required nor  encouraged, and is often considered undesirable. So, it is not protected under Article 25.  
• The Court also applied Article 14 and held that triple talaq is “manifestly arbitrary.” It  allows a Muslim man to end a marriage instantly without any reason or procedure, while  the woman does not have the same right. This was seen as unequal and violative of the  principle of Equality.  
• The Court further explained that constitutional values like equality and dignity apply to  everyone, no matter their religion. It clarified that personal law practices related to  marriage and divorce can be tested on constitutional grounds.  
• Justice Kurian Joseph agreed with the final decision but gave separate reasons. Instead of  focusing mainly on constitutional provisions, he focused on the Islamic law. After  studying the Quran, Hadith, and Islamic legal principles, he found that talaq-e-biddat is  not supported in Islam and is often considered a bad and sinful practice by various  Islamic Scholars. Therefore, it cannot be treated as a valid religious practice.  
• He also explained that the Shariat Act was meant to apply true Muslim law, and since  triple talaq is not approved in Islamic teachings, it should not be legally recognized. He  emphasized that proper forms of divorce in Islam require a fair process and time for  reconciliation, which instant triple talaq does not provide.  
• Based on this, the majority held that instant triple talaq is unconstitutional. 

Dissenting Opinion:  

• Chief Justice J.S. Khehar and Justice Abdul Nazeer disagreed with the majority and gave  a dissenting opinion. They held that talaq-e-biddat is a part of Muslim personal law and is  protected under Article 25, which guarantees freedom of religion. According to them,  such practices cannot be struck down by the Court.  
• They reasoned that triple talaq has been followed for a long time in Hanafi law and forms  part of religious practice. Therefore, it should not be treated as unconstitutional. They also  stated that fundamental rights like Articles 14, 15, and 21 apply only to State actions,  whereas triple talaq is a personal and religious matter.  
• The dissenting judges emphasized the principle of separation of powers. Referring to  earlier cases like Ahmedabad Women Action Group v. Union of India and Sarla Mudgal  v. Union of India, they stated that reforms in personal law should be made by the  legislature and not by the judiciary.  
• They also did not accept the use of constitutional morality as a ground to strike down the  practice. According to them, courts should be careful in applying such concepts in matters  related to religion and tradition.  
• Thus, the dissent held that the Court should not invalidate triple talaq and that any change  should be made by the legislature. As a temporary step, they suggested an injunction on  the practice for six months so that the Parliament gets time to make a law. They also said  that if no law is made within that time, the practice could continue since it was not fully  struck down.  

CRITICAL ANALYSIS  

The judgment in Shayara Bano v. Union of India is an important step toward gender justice  and equality, and I agree with the decision. The Court gave more importance to constitutional  morality over a religious practice that was unfair to women. The Court struck down instant  triple talaq, and protected Muslim women from arbitrary and one-sided divorces, which had  serious social and economic consequences for the women.  

One of the main highlights of the judgment was the use of the doctrine of manifest  arbitrariness under Article 14. The Court made it clear that even if a practice has been  followed for a long time, it cannot continue if it is irrational or unjust. It also showed that  fundamental rights like equality and dignity are of higher importance than personal religious  laws for everyone, no matter their religion.  

Another strong point is that the Court did not completely ignore religion. It thoroughly  examined if triple talaq is an essential religious practice and it found out that it is not. This  thorough examination helped to maintain a balance between religious freedom and  constitutional principles. The judgment also had a real impact, as it led to the Muslim Women  (Protection of Rights on Marriage) Act, 2019.  

However, there are some weaknesses. The majority judges gave different reasons for the  same decision, which can create confusion for the layman in understanding the exact legal  rule. 

The dissent also brought up an important issue of judicial overreach. It said that changes in  personal laws should be made by the legislature, and not the Court. This highlights the  ongoing conflict between judicial activism and separation of powers.  

CONCLUSION  

Shayara Bano v. Union of India is an important case that gave priority to the fundamental  rights of equality and dignity over unfair religious personal law practices. It showed that  constitutional morality is important in deciding such issues.  

In the future, this judgment can have a wider impact, as it may lead to challenges against  other discriminatory personal laws and reinforce that constitutional morality should guide  legal decisions. Overall, the case marks a shift toward a more progressive interpretation of the  Constitution, where equality and dignity are given greater importance than unfair traditional  practices.