Authored By: Rashi Agarwal
Manipal University Jaipur
Abstract
The 2017 ruling of the Supreme Court in Shayara Bano v. Union of India [1]signified a pivotal point in Indian legal and constitutional history by deeming the instant triple talaq practice (talaq-e-biddat) unconstitutional. This ruling was celebrated as a milestone for the rights of Muslim women and gender equality, but it also sparked heated discussions regarding judicial overreach, religious liberty, and the boundaries of state involvement in personal laws. The later implementation of the Muslim Women (Protection of Rights on Marriage) Act, 2019[2]—which made triple talaq a criminal offense—introduced additional complexity to the developing legal framework.
This article examines the various aspects of the triple talaq ruling and its consequences. It examines the decision’s dependence on constitutional tenets like equality (Article 14), [3]dignity (Article 21), [4]and the non-essential religious practice principle under Article 25[5]. It also explores the dissenting view, which advocated for religious independence and legislative changes instead of judicial annulment. The article additionally assesses the 2019 Act, probing if making a civil marital practice a crime reflects legal clarity or constitutes legislative overextension.
The dialogue is enhanced by citing significant verdicts such as Shah Bano, Danial Latifi, and Sabarimala to place the triple talaq decision within the wider framework of personal law changes and constitutional ethics. Ultimately, the piece explores whether the ruling truly promoted the empowerment of Muslim women or unintentionally deepened the constitutional clash between personal laws and fundamental rights.
This article seeks to provide a balanced view by integrating legal reasoning with socio-political context regarding whether the triple talaq ruling genuinely aligned Islamic personal law with India’s constitutional framework or simply paved the way for more profound religious and legal disputes.
INTRODUCTION
India’s legal framework, rooted in a diverse and multicultural tradition, has traditionally faced challenges regarding the integration of personal laws and the fundamental rights established in the Constitution. One notable conflict emerged in the matter of Shayara Bano v. Union of India (2017), which questioned the legality of instant triple talaq — a one-sided and permanent method of divorce observed in specific Muslim communities.
Triple talaq, also known as talaq-e-biddat, permits a Muslim man to instantly divorce his wife by saying “talaq” three times in one go, sometimes even through phone calls or text messages. For years, this practice faced criticism from human rights advocates, academics, and women’s rights organizations, which contended that it was fundamentally capricious, biased, and patriarchal.
The Shayara Bano case highlighted crucial constitutional issues: Is it possible to safeguard a religious practice that infringes upon fundamental rights? Can the state exercise authority over religious practices for the sake of justice and equality? Is making a civil wrong a crime in personal law a proportional reaction?
This article seeks to explore the complex legal challenges presented by the verdict and the later implementation of the 2019 law, assessing the legal clarity it sought to provide against the constitutional tensions it might have exacerbated.
The Supreme Court Verdict: Shayara Bano v. Union of India (2017)
The petitioner, Shayara Bano, was a Muslim woman who had been unjustly divorced by her husband via instant triple talaq. She submitted a writ petition to the Supreme Court citing Article 32, [6]contending that the practice infringed upon her fundamental rights as outlined in Articles 14 (Right to Equality), [7]15 (Prohibition of Discrimination), 21 (Right to Life and Personal Liberty), and 25 (Freedom of Religion). [8]
Main Opinion (3:2 Verdict)
The bench was made up of five judges from various religious backgrounds, representing India’s secular nature. The prevailing ruling determined that immediate triple talaq was unconstitutional.
Justice Nariman and Justice Lalit overturned it based on “manifest arbitrariness” as per Article 14. They maintained that any law or practice deemed arbitrary cannot receive protection, regardless of whether it originates from religious traditions.
Justice Kurian Joseph chose an alternate path. He determined that because triple talaq is not a fundamental religious practice in Islam and lacks endorsement in the Quran, it cannot be shielded by Article 25.
Dissenting Viewpoint
Chief Justice J.S. Khehar and Justice Abdul Nazeer disagreed. They argued that the practice, although unwelcome, was safeguarded by Article 25 and that the courts should refrain from intervening in religious issues. They indicated that Parliament ought to create laws regarding the matter instead of the court nullifying the practice.
In spite of the disagreement, the majority decision triumphed, and triple talaq was deemed unconstitutional.
Legislative Response: Muslim Women (Protection of Rights on Marriage) Act, 2019
After the ruling, the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019,[9] making instant triple talaq a criminal offense.
Prominent Aspects of the Legislation
Criminalization: Classifies the declaration of immediate triple talaq as a cognizable and non-bailable offense.
Penalty: The husband could face a prison sentence of up to three years.
Maintenance: Ensures the wife’s right to financial support and guardianship of underage children.
Compoundability: The offense can be compounded at the wife’s request, provided the court grants permission.
Bail Clause: The magistrate may authorize bail only after listening to the woman.
Critique of the Law
The legislation faced backlash on various levels:
Criminalization of civil wrongs: Detractors contend that marital conflicts are civil issues, and making them criminal establishes a troubling precedent.
Targeted legislation: Certain individuals perceived the Act as aimed at the Muslim community, thus exacerbating communal discord.
Effect on reconciliation: Incarcerating the spouse may disrupt the family’s finances, negatively impacting women and children.
Constitutional issues: Did the legislation violate religious liberty as stipulated in Article 25? [10]
However, the legislation also received backing from parts of civil society that considered it an essential measure to safeguard the dignity of Muslim women.
Legal Jargon
- Manifest Randomness
A legal principle employed to evaluate the constitutionality of statutes. A law deemed irrational, whimsical, or lacking just reasoning is viewed as clearly arbitrary and may be invalidated under Article 14 (Right to Equality).[11] - Core Religious Practices Beliefs
A legal principle that safeguards solely those religious customs deemed fundamental and central to a faith according to Article 25. [12]Activities not considered crucial might face regulation or be rendered invalid. - Constitutional Ethics
The dedication to maintain constitutional principles like justice, equality, and dignity, even when they clash with established customs or societal standards. Employed to reconcile personal laws with fundamental rights. - Uniform Civil Code (UCC)
A suggestion under Article 44 [13]of the Indian Constitution that seeks to substitute personal laws grounded in religious traditions with a uniform set of secular civil laws applicable to all citizens, particularly concerning marriage, divorce, inheritance, and similar matters. - Offence Not Bailable
An offense for which bail is not an automatic entitlement but is provided solely at the court’s discretion. The 2019 Act [14]designated triple talaq as a non-bailable crime. - Personal Legislation
Traditional laws regulating marriage, divorce, inheritance, and family issues within particular religious groups, like Hindu Law, Muslim Law, and Christian Law in India. - Judicial Oversight
The authority of the judiciary to assess the constitutionality of actions taken by the legislative and executive branches. Employed in Shayara Bano to evaluate the legitimacy of triple talaq. - Secularism
A core aspect of the Indian Constitution requires the state to remain neutral regarding all religions, while also ensuring that religious practices respect individual rights.
Constitutional Conflict: Religious Freedom vs. Gender Justice
The Triple Talaq judgment highlights the ongoing constitutional clash between religious liberty as outlined in Article 25 and gender equality as stated in Articles 14, 15, and 21 of the Indian Constitution. Article 25 [15]provides for the freedom of conscience and the ability to profess, practice, and spread religion; however, it is specifically contingent upon public order, morality, health, and the other stipulations of Part III, which encompass the right to equality and personal liberty.
In Shayara Bano v. Union of India[16], the Supreme Court invalidated talaq-e-biddat, ruling it as a non-essential practice in Islam and clearly arbitrary, thereby violating Article 14. [17]This choice signified a crucial change that prioritized the individual’s entitlement to equality and dignity over communal religious customs that sustain discrimination. Nonetheless, the dissenting justices cautioned against judicial intervention in religious matters, claiming that changes in personal laws ought to be the responsibility of the legislature.
This tension exposes a more profound legal issue: Is it permissible for the State to interfere in religious practices that infringe upon fundamental rights? The court’s stance is consistent with the principle of constitutional morality, implying that personal laws, similar to other types of law, need to adapt to uphold justice, equality, and human dignity.
In this context, gender justice requires that religious freedom should not be unconditional, particularly when it sustains patriarchal systems. The verdict thus signifies a daring affirmation of constitutional supremacy while simultaneously posing a challenge to India’s fragile equilibrium among law, belief, and reform.
Comparative and Supporting Case Laws
1.Shayara Bano v. Union of India (2017) 9 SCC 1 [18]
The primary case that deemed talaq-e-biddat unconstitutional, referencing evident unpredictability and absence of Quranic approval.
2.Danial Latifi v. Union of India (2001) 7 SCC 740 [19]
Affirmed the Shah Bano decision, indicating that Muslim women have the right to adequate maintenance after the iddat period.
3 Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 [20]
Significant ruling providing alimony rights to a divorced Muslim woman under Section 125 CrPC, sparking discussions on reforming personal laws.
4.Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1 [21]
In the Sabarimala case, the Supreme Court determined that the restriction on women entering temples breached Articles 14 and 25.
5.John Vallamattom v. Union of India (2003) 6 SCC 611 [22]
Invalidated a clause in the Indian Succession Act as biased against Christians, bolstering secular reform.
6.Bombay State v. Narasu Appa Mali AIR 1952 Bom 84 [23]
Maintained that personal laws do not qualify as ‘laws’ under Article 13 and are therefore not bound by fundamental rights — a perspective frequently discussed.
7.Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 [24]
Reasserted privacy as an essential right under Article 21, highlighting personal autonomy.
8.Navtej Singh Johar v. Union of India (2018) 10 SCC 1 [25]
Abolished the criminalization of homosexuality by annulling Section 377 IPC; upheld personal dignity and equality.
9.Joseph Shine v. Union of India (2019) 3 SCC 39 [26]
Declared adultery laws unconstitutional, promoting equality in marriage rights.
10.Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 [27]
Supported students’ right to abstain from singing the national anthem for religious reasons, strengthening the protections of Article 25.
Conclusion
The triple talaq ruling signifies a significant effort to align personal laws with constitutional principles. By nullifying a practice that clearly breached gender equality, the Supreme Court made a definitive statement for Muslim women. The implementation of criminal penalties via the 2019 Act [28]ignited additional debates, highlighting worries about excessive criminalization and biased targeting.
Though the ruling brought legal clarity regarding talaq-e-biddat, it also highlighted the constitutional tension between religious liberty and gender equality. The Indian Constitution guarantees both — a secular government that honors religious diversity and a forward-thinking structure that provides equality for every citizen.
How this decision is perceived—as an excessive measure or an essential adjustment—hinges on an individual’s understanding of secularism. What cannot be disputed, however, is that the verdict and the subsequent legislation have permanently changed the conversation regarding personal law reform in India.
As India moves closer to achieving a Uniform Civil Code, the triple talaq case acts as both a model and a warning — highlighting that reform should be driven by constitutional ethics, social awareness, and justice principles, rather than solely by political desire.
FAQs
1. What is Triple Talaq, and how was it used in India?
Triple talaq, also known as talaq-e-biddat, permitted a Muslim man to divorce his wife immediately by saying “talaq” three times at once. The wife’s approval was not necessary, nor were any legal procedures, frequently putting women in a position without options.
2.What was the primary problem in Shayara Bano v. Union of India? [29]
The main question was if the implementation of triple talaq infringed upon basic rights like equality (Article 14), dignity (Article 21), and safeguarding against discrimination (Article 15). [30]
3.What was the reason behind the Supreme Court’s decision to deem triple talaq unconstitutional?
The Court declared it to be “clearly arbitrary” and not a fundamental Islamic practice. It infringed upon the dignity and equality of women, thus was invalidated under Article 14.
4.What are the main characteristics of the 2019 Act? [31]
The Act designates triple talaq as a criminal offense with a penalty of three years in prison. It also addresses maintenance, child custody, and conditional bail.
5.Is triple talaq currently recognized under Islamic law in India?
Negative. The 2019 law and the Supreme Court decision have made it invalid and subject to penalties. Currently, only talaq-e-ahsan and talaq-e-hasan are allowed
6.Is the criminalization of triple talaq warranted under Indian legislation?
Views are varied. Some contend it serves as a deterrent, while others think it transforms a civil issue into a criminal one and could negatively impact family well-being.
7.In what way does this ruling influence the discussion on the Uniform Civil Code?
It has renewed demands for a Uniform Civil Code by demonstrating that personal laws can infringe upon constitutional rights and might require changes.
8.Did the ruling influence other personal laws in India?
Yes, indirectly. It established a standard that personal laws do not take precedence over the Constitution, allowing for examination of additional discriminatory practices.
9.Did any disagreement arise in the Triple Talaq ruling?
Certainly. Two judges disagreed, stating that triple talaq is an aspect of religious freedom and should be modified by the legislature rather than the judiciary.
10.What rights are granted to Muslim women by the 2019 Act?
The Act guarantees upkeep, child custody, and the ability to file an FIR against the husband if triple talaq is declared.
11.Can constitutional principles override religious practices?
Indeed, if they infringe upon basic rights or are non-essential religious activities, the state can regulate or eliminate them.
12.What has been the response of the Muslim community to the ban?
Responses vary. Although numerous Muslim women and activists embraced it, certain community leaders and religious organizations rejected it as government overreach.
Reference(S):
[1] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.
[2] Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code (2019).
[3] INDIA CONST. art. 14.
[4] INDIA CONST. art. 21.
[5] INDIA CONST. art. 25.
[6] INDIA CONST. art. 32.
[7] INDIA CONST. art. 14.
[8] INDIA CONST. art. 25.
[9] Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code (2019).
[10] INDIA CONST. art. 25.
[11] INDIA CONST. art. 14 (Manifest Arbitrariness).
[12] INDIA CONST. art. 25 (Essential Religious Practices).
[13] INDIA CONST. art. 44 (Uniform Civil Code).
[14] Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code (2019).
[15] INDIA CONST. art. 25.
[16] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.
[17] INDIA CONST. art. 14.
[18] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.
[19] Danial Latifi v. Union of India, (2001) 7 S.C.C. 740.
[20] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C. 556.
[21] Indian Young Lawyers Ass’n v. State of Kerala, (2019) 11 S.C.C. 1.
[22] John Vallamattom v. Union of India, (2003) 6 S.C.C. 611.
[23] State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.
[24] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1.
[25] Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1.
[26] Joseph Shine v. Union of India, (2019) 3 S.C.C. 39.
[27] Bijoe Emmanuel v. State of Kerala, (1986) 3 S.C.C. 615.
[28] Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code (2019).
[29] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.
[30] INDIA CONST. art. 14, art. 21, art. 15, art. 25.
[31] Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code (2019).
