Case Analysis: Shayara Bano v. Union of India

Shayara Bano

v.

Union of India[1]

CITATIONAIR 2017 SCC 1388
CourtSupreme Court of India
Case numberWP (C) 118/2016
Bench Rohinton Nariman, U. U. Lalit, Kurian Joseph, Jadgish Singh Khehar, Abdul Nazeer.
Popularly Known AsTriple Talaq Case
Date of Judgement23.08.2017

Background

Shayara Bano and Rizwan Ahmed were married for 15 years. In the year 2016, he divorced her through instantaneous triple talaq (talaq-e-biddat). So she filed a Writ Petition in the Supreme Court asking it to hold talaq-e-biddat, polygamy, nikah-halala, unconstitutional as they violated Article 14, 15, 21 and 25 of the Constitution of India. On 16th February 2017, the Court asked Shayara Bano, Union of India, Bebaak Collective, Bhartiya Muslim Mahila Andolan, and All India Muslim Personal Law Board to give written submissions on these issues of talaq-e-biddat, polygamy, and nikah-halala. The Union of India and the Women rights organizations supported Bano’s Plea that these practises are unconstitutional in nature. And All India Muslim Personal Law Board argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and that it was not unconstitutional as they are protected under Article 25 of the Constitution of India.

After accepting the Shayara Bano’s petition, the Apex court formed a five judge constitutional bench on 30th March, 2017. On 22nd August, 2017 the five Judge Bench of Supreme Court pronounced its decision in the Shyara Bano’s Case, declaring that the practice was unconstitutional by a 3:2 majority. Rohinton Nariman, U. U. Lalit, and Kurian Joseph were in Majority, whereas J.S. Khehar and Abdul Nazeer were dissenting.

Issues

Issue 1: Whether the practice of talaq-e-biddat (specifically – instantaneous triple talaq) an essential practice of Islam?

Issue 2: Whether the practice of Triple Talaq violates any fundamental right?

Related Provisions involved

Article 14[2]: ” Equality before Law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of the India prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

Article 15[3]: “Prohibition of discrimination on grounds of religion, race, caste, sex or place of Birth :

  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  • No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
    • access to shops, public restaurants, hotels and palaces of public entertainment; or
    • the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
  • Nothing in this article shall prevent the State from making any special provision for women and children.
  • Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Article 21[4] : “Protection of life and personal liberty.-

No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

Article 25: “Freedom of conscience and free profession, practice and propagation of religion.-

  • Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
  • Nothing in this article shall affect the operation of any existing law or prevent the State from making any law 
    • regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
    • (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.– The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.-In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

Concepts involved

Talaq-e-biddat is a practise which gives a man the right to divorce to his wife by uttering ‘talaq’ three times in one sitting or in one go, without his wife’s consent.

Nikah Halala is a practise where a divorced woman who wants to remarry her husband would have to marry, and obtain divorce, from a second husband before she can go back to her first husband.

Polygamy is a practice which allows Muslim men to have more than one wife.

Judicial Pronouncements, on the subject of ‘talaq-e-biddat’

Rashid Ahmad v. Aisa Khatun[5], the primary issue that came to be adjudicated in the above case, pertained to the validity of ‘talaq-e-biddat’ pronounced by Ghiyas-ud-din, a Sunni Mohomedan of the Hanafi school, to his wife Anisa Khatun- respondent no.1. The marriage of  the respondent with Ghiyas-ud-din had taken place on 20.08.1905. ghiyas-ud-din pronounced triple talaq, in the absence of witnesses, though in the absence of his wife – Anisa Khatun. Respondent no. 1 – Anisa Khatun received Rs. 1,000 in payment of ‘dower’ on the same day, which was confirmed by a registered receipt. Thereafter, Ghiyas-ud-din executed a ‘talaqnama’ (decree of divorce) dated 17.09.1905, which narrates the divorce. The ‘talawqnama’ is alleged to have been given to Anisa Khatun – respondent no. 1.

The Privy Council, upheld as valid, ‘talaq-e-biddat’ – triple talaq, pronounced by the husband, in the absence and without the knowledge of the wife, even though the husband and wife continued to cohabit for 15 long years thereafter, wherefrom 5 offsprings were born to them.

Jiauddin Ahmed v. Anwara Begum[6], (Single Judge judgement, authored by Baharul Islam, J., as he was then). The respondent – Anwara Begum had petitioned for maintenance, under Section 125 of the Code of Criminal Procedure. Her contention was, that she had lived with her husband for about 9 months, after her marriage. During that period, her marriage was consummated. Anwara Begum alleged, that after the above period, her husband began to torture her, and even used to beat her. It was therefore, that she was compelled to leave his company, and started living with her father, who was a labourer.

 Maintenance was duly grated, by the first class Magistrate, Tinsukia. Her husband, the petitioner – Jiauddin Ahmed, contested the respondent’s claim for maintenance, before the Gauhati High Court, on the grounf that he hd divorced her, by pronouncing divorce by adopting the procedure of ‘talaq-e-biddat’.

A perusal of the conclusion recorded by the High Court, leaves no room for any doubt, that the’talaq-e-biddat’ pronounced by the husband without reasonable cause, and without being preceded by attempts of reconciliation, and without the involvement of arbitrators with due representation on behalf of the husband and wife, woulf not lead to a valid divorce .

The high court also concluded, that the petitioner – Jiauddin Ahmed, had mainly alleged that he had pronounced talaq, but had not established the factum of divorce by adducing any cogent evidence. Having concluded, that the marriage between the parties was subsiting, the High Court upheld the order awarding maintenance to the wife – Anwara Begum.

Must. Rukia Khatun v. Abdul Khaligue Laskar[7], (Dision Bech judgement, authored by Baharul Islam, CJ., as he was then). Rukia Khatun was married to Abdul Khalique Laskar. The couple lved together for about 3 months, after their marriage. During that period, the marriage was consummated. Rukia Khatun alleged, that after the above period, her husband abandoned and neglected her. She was allegedly not provided with any maintenance, and as such, had been living in penury, for a period of about 3 months, before she moved an application for grant of maintenance.

 The petitioner’s application for maintenece filed under Section 125 of the Code of Criminal Procedure, was rejected by the Sub-Divisional Judicial Magistrate, Hailakandi. She challenged the order rejecting her claim of maintenance, before the Gauhati High Court. The respondent-husband – Abdul Khhalique Laskar, contested the claim for maintenance by asserting that even though he had married the petitioner, but he had divorced her on 12.4.1972 by way of ‘talaq-e-biddat’, and ad thereafter even executed a talaknama. The husband also asseted, that he had paid dower to the petitioner.

The claim of the petitioner-wife for maintenance on the ground, that she had been divorced by the respondent-husband. The perusal of the consideration extracted above, when examined closely, reveals that the High Court listed the following essential ingredients of a valid ‘talaq’ under Muslim law.

 Firstly, ‘talaq’ has to be based on good cause, and must not be at the mere desire, sweet will, whim and caprice of the husband.

Secondly, it must not be secret.

Thirdly, between the pronouncement and finality, there must be a time gap, so that the passions of the parties may clam down, and reconciliation may be possible.

Fourthly, there has to be a process of arbitration (as a means of reconciliation), wherein the arbitrators, are representatives of both the husband and wife. In the above ingredientsdo not exist, ‘talaq’ – divorce would be invalid. For the reason, that the ‘talaq-e-biddat’ – triple talaq pronounced by the respondent-husband – Abdul Khalique Laskar, did not satisfy all the ingredients for a valid divorce, the High Court concluded that the marriage was subsiting, and accordingly held the wife to be entitled to maintenance.

Masroor Ahmed v. State (NCT of Delhi)[8], (Single Bench judgement, authored by Badar Durrez Ahmed, J., as he then was). Aisha Anjum was married to the petitioner – Masroor Ahmed, on 02.04.2004. The marriage was duly consummated and a daughter was born to the couple (- on 22.10.2005). It was alleged by the wife – Aisha Anjum, that the husband’s family threw her out of her matrimonial home (-on 08.04.2005), on account of non-fulfilment of dowry demands.

While the wife – Aisha Anjum was at her maternal home, the husband- Masroor Ahmed filed a case for restitution of conjugal rights (-on 23.03.2006), before the Senior Civil Judge, Delhi. During the course of the above proceedings, the wife returned to the matrimonial home, to the company of her husband (-on 13.04.2006), whereupon, marital cohabitation was restored. Once again there was discord between the couple, and Masroor Ahmed pronounced ‘talaq-e-biddat’, on 2800802006.

The wife – Aisha Anjum alleged, that she later came to know that her husband – Masroor Ahmed, had divorced her by exercising his right of ‘talaq-e-biddat’, in the presence of the brothers of Aisha Anjum, in October 2006. And that, the husband had lied to the court, (and to her, as well) when he had sought her restitution, from the Court, by making out as if the marriage was still subsisting. It was her claim, that she would not have agrred to conjugal relations with him, had she known of the divorce. And therefore, her consent to have conjugal relations with Masroor Ahmed, was based on fraud committed by him, on her – Aisha Anjum. She therefore accussed Masroor Ahmed, for having committed the offence under Section 376 of the Indian Penal Code, i.e., the offence of rape.

She also claimed maintenance from her husband, under Section 125 of the Criminal Procedure Code. During the pendency of the above proceedings, the parties arrived at an amicable settlement on 01.09.2007. A perusal of the conclusions recorded by the High Court would reveal, that triple talaq pronounced at the same time, is to be treated as a single prouncement of divorce. And therefore, for sereving matrimonial ties finally, the husband would have to complete the prescribed procedure, and thereafter, the parties would be treated as divorced.

Nazeer v. Shemeema[9], (single Bench judgement, authored by A. Muhamed Mustaque, J.). through the above judgement, the High Court disposed of a number of writ petitions, including three writ petitions, wherein husbands had terminated their matrimonial alliance with their spouses, by prouncing ‘talaq-e-biddat – triple talaq. Their matrimonial relationshiphaving coming to an end, one or the other or both (-this position is unclear, from the judgement) spouses approced the passport authorities, to delete the name of their former spouse, from their respective passports.

The passport authorities decliened to accept their request, as the same was based on private actions of the parties, which were only supported by unauthenticated ‘talaq-namas’ (deeds of divorce). The stance adopted by the passport authorities was, that in the absence of a formal decree of divorce, the name of the spouse could not be deleted. By passing interim directions, the High Court ordered the passport authorities, to correct the spouse details (as were sought), based on the admission of the corresponding spouse, that their matrimonial alliance had been dissolved.

A perusal of the conclusions drawn by the high court revels, that the practice of ‘talaq-e-biddat’, was deprecated by the court. The court however called upon the legislature, to codify the law on the issue, as would result in the advancement of justice, as a matter of institutional form.

The issue goes back to a 1951 Bombay High Court Judgement in the case, State of Bombay v. Narasu Appa Mali[10], where a two-judge bench had held that personal law was not covered by the phrase “laws in force” used by the constitution in Article 13 to denote all those pre-constitutional enactments which were “in force” at the time of adopting the Constitution, and which were subject to the Fundamental Rights. The two judges held that this was because the source of personal law was a religion rather than the state. The foundations of this judgement have been criticised by eminent legal scholars like H.M. Seervai (2015) and A M Bhattacharjee (2016). Several high courts benches have also called for its reconsideration.

 The Supreme Court affirmed it in the 1980 judgement Sri Krishna Singh v. Mathura Ahir[11], then implicitly overturned it in the 1996 judgement C Masilamani Mudaliar and Others v. The Idol of Swaminathaswaminathaswami Thirukoil[12] and then upheld it again in the 1997 judgement Ahmedabad Women’s Action Group v. Union of India[13].

Judgement

On 22nd August, 2017 the five Judge Bench of Supreme Court pronounced its decision in the Shyara Bano’s Case, declaring that the practice was unconstitutional by a 3:2 majority. This decision means that the triple talaq is no longer legal throughout India. Following the judgement, and on its own initiative, the government introduced a bill criminalizing triple talaq. The Lok Sabha (Lower house of India’s bicameral Parliament) passed this bill in December 2017 and in accordance with India’s legislative process, it was before Rajay Sabha (Upper House) where the triple talaq bill was passed with 99 to 84 votes. It is now illegal for Muslim men to pronounce talaq three times for dissolution of marriage, as it was finally passed by the Indian Parliament at the end of July.


[1] (2017) 9 SCC 1

[2] The constitution of india, 1950

[3] Supra 1

[4] Supra 2

[5] AIR 1932 PC 25

[6] (1981) 1 Gau.L.R. 358

[7] (1981) 1 Gau. L.R. 375

[8] 2008 (103) DRJ 137

[9] 2017 (1) KLT 300

[10] AIR 1952 Bom 84, (1951) 53 BOMLR

[11] 1980 AIR 707

[12] 1996 AIR 1697

[13] AIR 1997

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