Name of the case: Shayara Bano v. Union of India
Citation: AIR 2017 9 SCC 1 (SC)
Date of Judgment: 22nd August, 2017
Parties Involved: Sharayar Bano and others, All India Muslim Personal Law Board (AIMPLB), Union of India
Bench: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Niraman, Justice Uday Lalit, Justice K.M. Joseph.
Laws and Acts applied in the case: Muslim Personal Law (Sharait) Act 1937
On 22 August 2017 the Supreme Court took a landmark decision on the constitutional validity of “Talaq-e-Biddat” popularly known as “Triple Talaq” which is one of the three male initiated divorce in the Muslim community, the other two being “Talaq ahasan” and “Talaq hasan”. As the name suggests in this form of divorce, where a Muslim man can instantly divorce his wife after repeating the word “talaq” in one sitting, without any state intervention. Here the means of communication could be in any form i.e written, oral, or even electronic, which further enhances a woman’s vulnerability in this arbitrary and unilateral divorce1. This controvertial custom given that it is an intersection between gender identity and community has unsurprisingly left Muslim women prone to abuse and in a morbid state, especially given the socio economic aspect where most of the women are financially dependent on their spouse and the added fear of this whimsical divorce leaves many cases of marital abuse unreported.2
Thus because of the pressing need to address the above issue the Supreme Court in this case of Shayara Bano v. Union of India3 declared this custom unconstitutional by a majority of 3:2 ratio. This ultimately will have a ripple effect on various aspects of Constitutional Law, especially in the context of Fundamental Rights and its relation with the personal laws of the country, while also having an impact on the social aspect of gender justice which unfortunately the judgement does not discuss in detail as it mainly as it focuses mainly on the validity of Triple Talaq in context to marriage as an institution.
Background
It is important to note that Triple Talaq does not hold valid in all Muslim school of thoughts but only the Hanafi School of Sunni sect, regards it ‘lawful although sinful’.4 In the case of Sarabai v. Rabaibai5, 5 years before the Muslim Personal Law (Sharait) Act 1937, the court held that “it is a good law but bad is ideology”. However the first time a concern regarding this custom was raised by Justice Krishna Iyer in the Kerala High Court.6 Subsequently Justice Baharul Islam in two Gauhati High Court Judgement7 rejected the proposition that even if triple talaq was theoretically sound, it was legally valid. For the next two decades there were different judgments which came out for and against this custom. One of the most significant being Shamin Aru v. State of Uttar Pradesh8 in 2002 where the conditions for a valid talaq were mentioned. Although it did not deal with the triple talaq directly it however did spark a discussion of what counts as a valid talaq. This case was future used as a binding precedent later on as to why triple talaq is invalid.
Finally in 2015 a suo motto writ petition was filed when two supreme court judges realised the urgency of it while dealing with Hindu women’s rights to coparcenary property.9
As far as key legislation goes like any other community Musilms also have a personal law. Specifically Sections 2 of the Muslim Personal Law (Sharait) Act 1937, which states that “provisions of Personal Law, marriage, dissolution of marriage, including talaq” are applicable to the adjudication of cases.
Verdict of the Court
What is interesting about this case is that the five judges bench gave three different line of opinions. Former Chief Justice Jagdish Singh Khehar delivered the minority opinion for himself and Justice S. Abdul Nazeer. The majority judges Justice Rohinton Fali Niraman and Justice Uday Lalit delivered their view together and Justice K.M. Joseph took an entirely different approach but landed with the same decision hence the ratio of 3:2.
Analysis
Personal Law and Constitutional Law
On the face of it the Court’s decision was the right one to take but the approaches adopted by the majority judges seem to differ which gives rise to the debate on how to look at personal law in a secular country like India. It raises the question at what point is it acceptable for the Judges to take decisions on the constitutionality of an uncodified practice like triple talaq.
Justice Khehar does not look at it form the aspect of Muslim law but sees it completley form the point of view of the consitution and if it can be held valid under the same. To which Justice Khehar replies on the similar lines of the opposition’s argument that personal law was not a state enacted law and only state enacted law can be subjected to Fundamental Rights. However the major flaw which can be seen in the following argument that how a practice which even though is not codified under the personal law, is authorised and enacted by the State not be under the scope of law of the sovereign.10
Now looking at Justice Niraman’s argument we find that he does consider triple talaq to be “law in force” as per Article 13. With a very reasonable argument that since Section 211 of Muslim Personal Law (Sharait) Act 1937 gives talaq in general authority so it automatically comes under the supervision of the state laws.
Thus the obvious question that comes before us here is, are any relevant fundamental rights being violated, specifically Article 14 and Article 15 which cover Right to Equality or can it be saved by fundamental right like Right to Religion i.e Article 25.
Right to Equality under Article 14
Violation of Article 14 can be not only found out by test of reasonable classification12 but also by the use of arbitrariness13. Justice Niraman holds the practice mainly void under arbitrariness. However the conclusion at which he arrived seems to have been not based on the inequality of the two genders but the religious based conception of triple talaq to be arbitrary. He does not necessarily show how the inequality per say exists but merely points out that this form of divorce is arbitrary because there is no mode of reconciliation. As pointed out by many scholars of the problem of arbitrariness it just shifts the focus more on arbitrariness rather that actually pointing out where the inequality exists.14
Right to Gender Equality under Article 14 and Article 15
What is majorly missing in the judgement is the in depth analysis of gender inequality. Surprisingly even the petitioners did not bring out the inherent disrimination between the husband and wife and majorly focused on the practice of triple talaq being un-islamic rather than bringing out the ills of triple talaq. This created a political situation of cultural minority versus modernity debate. As minority groups like All India Muslim Persoanl Law Board saw this as a question on their Muslim identity. This case could have seen almost the same result as the case of Shah Bano case15. Where the judgement delivered by 5 judge Hindu male, triggered the Muslim community by a plea to invoke Uniform Civil Code and the adverse comments made by court against Prophet and Islam. All of this led to drawing of sharp boundaries where Muslim women were called on to choose between their religion and their gender claims.16 Ultimately this led to Shah Bano completely renouncing the divorce maintenance. Fortunately nothing similar to those lines have occured in this case. However maybe in the fear of not wanting a similar outcome the judgement almost ended up completely ignoring such an important aspect of equality. Therefor while giving the judgement in relation to equality marriage as an institution was given a higher priority.
Right to freedom of religion
As far as religious aspects go the Justice Niraman did not agree that it would be under the protection of Article 25 as it only protects those practices which is an integral part of the religion which many scholars and commentaries on the same in Sharia have said it is otherwise.
While discussing triple talaq especially the religious aspect of the case Justice Joseph who although agreed with Justice Niraman but took a different route to achieve the end goal. He disagreed with Justice Niram that it was not upon judges to decide on religious matters. In fact Justice Joseph goes no to say that when a private law is unclear on a particular issue it is left for the judge to decide what the law means to say. Therefore in this case the judge has to take the decision on what is the given scenario of the particular practice or custom as no one else can. He looked at this case completely form the cultures point of view and chose to ignore the constitutional aspect as according to him only the legal santity of triple talaq in Muslim personal law needed to be determined.
Therefore what we can see that Justice Joseph tactfully reaches the same outcome as many without actually having to enroute through constitutional rights, secularism or uniform civil code. He mainly relies on commentries on Muslim Law and judgements relying on the commentries on Muslim law by Muslim Judges – which was key in invalidating the triple talaq and maintaining a politically viable judgement, whithout causing a lot of communal backlash or tension.17
Conclusion
It is no doubt that the triple talaq judgement has become a landmark judgement especially on the aspect of private law in this country. It has given us various different aspects on how to deal with them especially Justice Joseph’s “culturally grounded” judgement. This judgment definitely showed that the supreme court has learned from its past mistakes on personal law. Despite the fact that it lacked to give clarity on gender justice and inequality in personal laws and how they are to be treated. It also did not address if “setting aside” triple talaq meant that it had no legal effect at all or three utturence meant one. Therefore all said and done, it is definitely a move towards equality and has given a backbone to how future personal law and social amendments need to take place. This judgement also handled the minority is a very viable way which is a step toward secularism. It is hoped that this judgement will be taken in the bright light and will help Muslim woman to live a better and more secure life as gauranteed by the law of the land.
Endnotes
1. BBC, Triple Talaq: How Indian Muslim Women Fought, and Won, the Divorce Battle, August 22,
2. Gopika Solanki,Adjudication In Religious Family Laws: Cultural Accommodation, LegalPluralism, and Gender Equality in India (Cambridge University Press 2007) 132.
3. AIR (2017) 9 SCC 1 (SC)
4. Asaf AA Fyzee, Outlines of Muhammadan Law (3rd edn, Oxford University Press 1964) 147.
5. (1906) 8 BOMLR 35.
6. Yousuf Rawther v Sowramma AIR 1971 Ker 261.
7. Jiauddin Ahmed v Anwara Begum (1981) 1 GLR 358; Rukia Khatun v Abdul Khalique Laskar (1981) 1 GLR 375.
8. AIR 2002 SCC 3551
9. Prakash v Phulavati (2016) 2 SCC 36.
10. Bhattacharjee (n 37) 85.
11. Application of Personal law to Muslims. Section 2 —Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
12. Budhan Chaudhary v. State of Bihar .
13. E.P Royappa v. State of Tamil Nadu AIR 1974 SC 555.
14. Commentators have criticized the arbitrariness doctrine for being incoherent and only weakly connected to the idea of equality. For a critical account of both the ‘old’ and ‘new’ tests, See, Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’ in Sujit Choudhry, PratapBhanu Mehta and Madhav Khosla (eds),The Oxford Handbook of Indian Constitutional Law (Oxford University Press 2016) 699-719.
15. AIR 1985 SC 945.
16. Flavia agnes, “Muslim Women’s Rights and Media Coverage” 15 EPW 22 (2016).17. Most political parties welcomed the verdict, though for different reasons. Jamiat-i-Ulema openly refused to abide by it, but AIMPLB accepted it as an affirmation of its own position on triple talaq.
Shabri Bose
AuthorShabri hails from Gujarat National Law University and spends most of her time in researching, reading and debating. Her Interest area law and policy. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com
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