FACTS Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution. The Court however chose to examine the issue of triple talaq alone. The Court asked Shayara Bano, the Union of India, various women’ rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of talaq-e- bidat, The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported the Ms Bano’s plea that these practices are unconstitutional. The AIMPLB has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution. All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind argued that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law and that the matter was in the domain of the legislature.
ISSUES BEFORE THE COURT
- Whether triple Talaq is a religious practice and protected under Article 25 of the Constitution?
- Does Shariat Act gives triple talaq applicability?
OBSERVATION AND DECISION OF THE COURT
By Kurian, J- 1. Triple Talaq lacks legal sanctity i.e the holy quaran has attributed sanctity and permanence to matrimonial relationships. Generally talaq is prohibited in Islam unless there is an unavoidable situation, however before such pronouncement of talaq is made, an attempt for reconciliation has to be done. However triple talaq is angst the basic tenets of holy quaran and therefore it violates Shariat, Hence it was held that triple talaq canot be considered an integral part of Muslim religion and therefore it is not the part of their personal Law. 2. It was also observed that triple talaq is not an integral part of religious practice. The mere fact that the practice has been continued for a long time, that by itself cannot make it a valid practice. Moreover, the 1937 Act was introduced to declare Shariat as a rule of decision and after its introduction no practice which is against the tenets of Islam is permissible. Therefore, there cannot be given any constitutional protection to sch a practice. It was held that “what is held to be bad in holy quaran cannot be good in Shariat, what is bad in theology is bad in law as well”
By U.U Lalit, J and Nariman, J- 1. It was observed that the practice of divorce was introduced with the advent of islam wherein a man was permitted to divorce his wife only when she was indocile or a woman of bad character. Otherwise in the absence of good reason a man was not allowed to pronounce talaq. However, as per the bench they had to decide whether the practice of triple talaq part of the personal law of Muslims or ot because if it is the part of the personal law then it would be covered u/s 2 of the Shariat Act 1937. The 1937 Act is pre-constitutional legislative measure which would fall directly within Article 13 of the Constitution. 2. The 1937 Act is a law made by legislature before the constitution came into force. It would fall squarely within the expression “law in force” and if found inconsistent with the provison of Part III of the Constitution then to that extent of inconsistency they can be declared as void. 3.The court applied the test of manifest arbitrariness i.e triple talaq is a form of talaq which even is considered as sinful but is followed in case of Hanafi Sunni Muslims. According to Quaran talaq must be for a reasonable cause and also be preceded by attempts of reconciliation between the husband and the wife by two arbitrators, one from the wife’s family and other from the husband’s family. If the attempts fail, talaq may be effective. Moreover the triple talaq is instant and irrevocable; therefore, the marital tie between husband and wife can be broken whimsically and capriciously by a muslim man without any attempt at reconciliation so as to save it. 4. Therefore such talaq is violative of Article 14 of the constitution. Moreover so far as the Shariat Act seeks to recognize and enforce triple talaq, must be struck down to the extent as being void to the extent that it recognizes triple talaq. 5. It was also observed discussed whether triple talaq is essential religious practice or not. It was held that essential practice means those practices that are fundamental to follow a religious belief. The main test to determine whether a part of practice is essential to a religion is to find out whether the nature of religion will be changed without the part of practice or not. If the taking of that practice results in fundamental change of that religion then it will be considered a religious practice. The court found that the triple talaq was permissible in law but at the same time is considered as sinful by Hanafi Sunni Muslims. Therefore, it would not form the part of essential religious practice.
CONCLUSION The Supreme Court has made triple talaq invalid by a 3:2 majority but still an ambiguity as to its reasoning remains as even when the judges agree on the outcome, they do so for different reasons. Justices Nariman and Lalit find triple talaq to be un-Islamic and unconstitutional. Justice Joseph does not go into the question of constitutionality but finds triple talaq to be un-Islamic and hence, invalid. Arguably, Justice Joseph’s approach to the problem shows that it could have been tackled even without a constitutional challenge. However the law of the land is clear now and triple talaq has been abolished and the Government of India has enacted a legislation to curb the menace.
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