Author Details: Sivagayathri Ramesh Babu

Graduated from Government Law College Madurai affiliated with The Tamil Nadu Dr. Ambedkar Law University

1. CASE CITATION

Shayara Bano v. Union of India, (2017) 9 SCC 1

2. FACTS OF THE CASE

In this landmark case, Shayara Bano, a lady from Uttarakhand, approached the Supreme Court to declare the practice of instantaneous triple talaq, or “talaq-e-biddat,” as void after her husband divorced her, uttering “talaq” three times in one sitting. Talaq-e-biddat permits a Muslim man to unilaterally bring a marriage to an end instantly, without the wife having any opportunity to respond or try reconciliation. Shayara Bano’s above-mentioned divorce through this method, after having spent 15 years of married life, left her without any recourse, stability, or rights commonly accorded to women in marriage. This case found its way to the Supreme Court of India on grounds of triple talaq violating her fundamental rights of equality, non-discrimination, and personal liberty enshrined under Articles 14, 15, and 21 of the Indian Constitution, respectively. The case brought out the tussles and the possible harmony between personal religious laws and constitutional principles. A national debate was stirred, relating to women’s rights and religious freedom within India’s borders.

3. ISSUES PRESENTED

The main questions before the Court were:

1. Does the annulment of marriage by ‘talaq-e-bidder’, commonly called ‘triple talaq’ or ‘instant divorce’, amount to a violation of fundamental rights under Articles 14, 15, and 21 of the Constitution of India?
2. Whether ‘talaq-e-biddat’ is an essential practice of religion as read under Article 25 of the Constitution of India that guarantees one’s freedom of religion?
3. Does the judicature have the authority to subject religious practices for judicial review when they are being practiced that are malicious to individual rights yet at the same time don’t infringe any provisions of the Constitution?

4. ARGUMENTS

P APPLICANT (SHAYARA BANO):

Violation of Fundamental Rights: Shayara Bano argued that talaq-e-biddat allows a Muslim husband to have absolute and arbitrary control over his wife in respect of his marital relationship with her, thus treating the wives discriminatorily by not providing them any protection under law or giving them any recourse. This practice violated her right to equality under Article 14 and her right to dignity and personal liberty under Article 21.

Non-Essential Practice: Bano argued that talaq-e-biddat was not an essential or integral part of Islamic belief. She elaborated the examples of a ban on this practice in several Muslim-majority countries such as Pakistan and Bangladesh, saying that itself proved this practice was not intrinsic and unalterable in Islam.

Dignity and Autonomy: Bano argued that dignity was the quintessence in one’s life, specifically in the case of a woman in marriage. Talaq-e-biddat could make a woman’s life dependent upon a single word uttered by a male, thus destroying her dignity and autonomy, and making her seem unequal and discardable.

RESPONDENT (UNION OF INDIA AND ALL INDIA MUSLIM PERSONAL LAW BOARD):

Freedom of Religion: The AIMPLB pleaded that the talaq-e-biddat was a constituent element of Muslim ‘personal law’ and, hence, an activity protected under Article 25, conferring freedom of religion. This is because religious practice should continue to remain within the fold of insulating judicial authority as a measure of respect for the autonomy granted to religious denominations.

Judicial Restraint in Religious Matters: The petitioners urged the Court not to trespass on traditional boundaries of judicial review on matters of religion. They said interference would shake the very independence of religious personal laws, and an imbalance between community autonomy and individual rights would result.

Personal Laws Beyond Fundamental Rights: The AIMPLB argued that personal laws, being based on the holy book and beliefs, were not subject to judicial review based on the principles of constitutionality.

5. RELEVANT PROVISIONS OF THE LAW

Article 14: Equality before law and equal protection of laws.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

Article 21: Right to life and personal liberty, including dignity and autonomy.

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

International Conventions: The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) promotes equality in marriage and family relations; therefore, this was an international context supporting her motion to stand up for her rights as a woman in marriage. The Supreme Court rendered a split majority judgment holding talaq-e-biddat unconstitutional and violative of Articles 14 and 21. The majority has held that talaq-e-biddat is arbitrary and discriminatory and devoid of rational nexus and procedural fairness. It has asked Parliament to legislate on the issue, well aware that this method of divorce cannot go with the constitutional values of equality and justice.

7. REASONING OF THE COURT

Justice Kurian Joseph: Justice Joseph held that talaq-e-biddat did not form an integral part of Islam. Through reliance on various verses of the Quran, he said the Quran exhorted the married couple to try patience and reconciliation and never to behave in a whimsical manner to divorce their wives. Therefore, once a practice is not integral to a religion, that practice would necessarily become amenable to the test of constitutional fundamental rights. For that reason, he held that talaq-e-biddat was discriminatory and arbitrary, hence in violation of Article 14.

Justice Rohinton F. Nariman and Justice U.U. Lalit: These judges concurred with Joseph on the intrinsic arbitrariness of talaq-e-biddat. “It enables a man to terminate marriage all by himself and without any valid reason, and the rights of the woman become irrelevant,” they said. The absence of fair procedure here, they held, was a breach of Article 14, guaranteeing equality before the law. They also presented that the wide prohibition of talaq-e-biddat in other Islamic countries proved it was neither necessary nor immutable.

Dissenting Opinion by Chief Justice J.S. Khehar and Justice Abdul Nazeer: Chief Justice Khehar and Justice Nazeer, in dissent, argued that though talaq-e-biddat might be discriminatory, it had the protection of being a part of Muslim personal law under Article 25. They said the question of religious practices was best left for the legislature to tackle and supported a six-month injunction on talaq-e-biddat, asking Parliament to legislate on this aspect.

8. DOCTRINE OR PRINCIPLE VISAGED BY THE JUDGMENT

Shayara Bano v. Union of India brought a very significant principle in the Indian jurisprudence, namely, that if customs and practices somehow obstruct an individual’s right to dignity, equality, and justice, they must step aside before the corpus of constitutional rights. The Court thereby underscored that at one level, the choice to show deference to religious practice may be necessary, but, however, these cannot be permitted to violate fundamental rights protected by the Constitution.

The Court held expressly that the intrinsic arbitrariness of talaq-e-biddat could not be justified on the exclusive ground of freedom of religion. This judgment pronounced a “test of arbitrariness” to assess personal laws, wherein it was held that personal laws, like other laws, are required to respect the individuals’ right to equality and justice. In other words, it encourages a harmonious principle that allows religious practices to be followed, but only insofar as they are aligned with basic underlying values of equality and dignity. The judgment thus held that any laws impinging directly on the life and well-being of any individual, such as marital laws, had to be rational and non-discriminatory in nature, irrespective of their source in religion.

More importantly, this decision adopted a doctrine of dignity as integral to personal law cases that directly affect individual autonomy and equity, in particular family relationships. By placing dignity as the guiding doctrine, the Court was conscious of the human consequences of such practices and sought to protect people from the effects of customs that perpetuate inequality.

9. DISSENTING OPINIONS

Chief Justice J.S. Khehar and Justice Abdul Nazeer thus dissented, holding that judicial restraint was required on the religious question. They appreciated that the talaq-e-biddat was discriminatory, but its reform was a question of discretion before the legislature. Indeed, their minority judgment foiled any possible precedent in judicial interference in religious tenets, stating that the courts must keep their hands away unless the legislature has acted upon these subjects explicitly.

10. IMPACT AND SIGNIFICANCE

Legislature’s Outcome: After the judgment, Parliament enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019, which made talaq-e-bidder a penal offense and provided a legal remedy for women against instant triple talaq. This Act seriously reformed the Muslim personal law of India and made it more in tune with constitutional guarantees.

Advancing the Rights of Women: This case brought in a wind of change for Muslim women in India by taking away an unprincipled custom of unilateral divorce with no intervention or regulation, hence giving a boost to women’s marital rights and providing cover against arbitrary divorce.

Assurance on Issues of Freedom to Religion: The judgment descriptively made it clear that no form of religious practice could be allowed to jeopardize the fundamental rights of any citizen. This sent the impression that the judiciary would be keen to intervene and prevent discrimination, no matter how religiously founded, hence setting a reference point for similar cases.

11. CRITICAL ANALYSIS

Merits: This judgment was a landmark leap forward in the field of women’s rights impaled within the ambit of personal law. This underlined that the judiciary is keen to enforce fundamental rights upon the people, even when faced with consolidated religious traditions. The interpretation of the Court of Talaq-e-biddat as arbitrary and its emphasis upon individual dignity proves to be modern and rights-oriented.

Limitations: There are criticisms on the ground that the judgment intrudes upon the religious autonomy of the citizens and the Court has overstepped its role by intervening in the personal laws. The dissent