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CASE COMMENT: SHAYARA BANO vs. UNION OF INDIA AND OTHERS

AUTHOR- Jahnavi S Of School of Excellence in Law, TNDALU.

Writ Petition (C) No. 118 of 2016

(2017) 9 SCC 1

ABSTRACT

This case commentary provides an analysis of the case which took down a 1,400 years old practice with a 3:2 majority by a constitutional bench. Triple Talaq was a practice that made it possible for a Muslim husband to provide an instant and irrevocable divorce to his wife which was held unconstitutional. It had been held that the current practice isn’t a necessary part of the religion, violates Part III of the constitution, and thus cannot take shelter under Article 25 of the Constitution. Through this case commentary, the author aims to highlight the key issue involved in this particular case and discussed the later developments of the case through The Muslim Women (Protection of Rights on Marriage) Bill, 2017.

THE FACTS OF THE CASE

A Muslimwoman, ShayaraBano was divorced by her then-husband Rizwan Ahmad by pronouncing the word ‘Talaq’ thrice in the company of two witnesses and later was presented with a ‘Talaqnama’. Aggrieved by the very fact that she had no say in her own divorce, she moved the Supreme Court against the practice of “Triple Talaq” being violative of the fundamental rights and thus be declared as ‘void ab initio’. Later on, the substantial question of law about the validity of ‘Triple Talaq’ was concerned and a Constitutional Bench of five Supreme Court judges namely Chief Justice JS Khehar, UU Lalit, Justices Kurian Joseph, RF Nariman, and Abdul Nazeer was formed.

THE ISSUES RAISED

1. Whether ‘Triple Talaq’ is an essential feature of Islamic belief and practice?

2. Whether ‘Triple Talaq’ is in accordance with the Part III of the Constitution of India?

3. Whether the practice of ‘Triple Talaq’ is protected bb the virtue of Article 25 of the Constitution of India.?

THE RULES

1. The Constitution of India, 1950: Article- 14,15,21,25,51A,

2. The Muslim Personal Law (Shariat) Application Act, 1937

3. The Muslim Women (Protection of Rights on Marriage) Bill, 2018

HELD

The Hon’ble Supreme Court in August’20 held in 3:2 majority that the practice of ‘Triple Talaq’ was unconstitutional. The majority held that this particular practice is not an essential part of the religion and thus cannot take shelter under Article 25 of the Constitution. With this judgment the 1,400 years old social evil was put to an end, and therefore the women were freed from the whims of the everlasting patriarchy which were making their life a living hell.

ISSUE I: Whether ‘Triple Talaq’ is an essential feature of Islamic belief and practice?

Talaq-e-biddat is unilateral, instant and irrevocable kind of divorce which may only be pronounced by the husband upon his wife and not contrariwise. The Holy Quranis the word of God, it doesn’t explicitly describe any kind of divorce. The Quran frowns on the practice of Talaq but it frowns more on the irrevocable and capricious style of divorce where the husband isn’t obligated to give a reason for the divorce and which is characterized by the absence of a reconciliation period for the couple. However, a parallel line of reasoning is formed to justify the validity of Triple Talaq. The respondents have argued that the Quran doesn’t mention any form of Talaq and therefore if the logic behind the petitioner’s argument is to be followed then all forms of divorce will have to be declared unIslamic which would render the married couples remediless in case of marital disputes.The question regarding the importance of the practice of ‘Triple Talaq’ is answered by the very fact that almost all of the Muslim majority nations have already banned the practice and only the Hanafi School practices the same in India itself considered it to be sinful.

Moreover, reliance has been placed on these cases by Justice Kurian J: Shamim Ara [1], Masroor Ahmed[2], and Jiauddin Khan v. Anwara Begum[3]by Najarul Islam J[4] while concluding the practice of Triple Talaq to be unIslamic. The test of essentiality clearly describes whether a practice is an integral part of the faith. Different viewpoints were taken by CJI Khehar and Justice Nariman. CJI Khehar relied upon Sardar Syedna Taher Saifuddin Saheb case[5]quoted that whether a practice is necessary or not must be decided from the view of the members of that community, while Nariman J., in quoting, Commissioner of Police v. Acharya Jagdishwarananda Avadhuta[6], states that an essential practice is the practice is that, on which core beliefs of the religion are founded; a cornerstone upon which the superstructure of the religion is built, without which the elemental character of the religion would change. It’s a permanent and essential part of the religion and can’t be subtracted or added later. Thus, it’ll be absurd to mention that what’s sinful as per a community is also additionally essential according to them.

ISSUE II: Whether ‘Triple Talaq’ is in accordance with the Part III of the Constitution of India?

It was noticed, that the basic right to equality, ensured to every citizen under Article 14 of the Constitution, must be read to incorporate, equality amongst women of various religious denominations. It was submitted, that gender equality, gender equity, and gender justice, were values intrinsically intertwined within the guarantee assured to everyone. The conferment of social status based on patriarchal values, so as to place womenfolk at the mercy of men, cannot be sustained within the framework of the fundamental rights, provided for under Part III of the Constitution. It was contended, that besides equality, Articles 14 and 15 prohibit gender discrimination. It was indicated, that discrimination on the ground of sex, was expressly prohibited under Article 15. It was contended, that the right of a woman to human dignity, social esteem, and self-worth were vital facets, of the right to life under Article 21. It was submitted, that gender justice was a constitutional goal, contemplated by the framers of the Constitution.[7]Touching on Article 51A(e) of the Constitution, it was pointed out, that one amongst the declared fundamental duties contained in Part IV of the Constitution, was to make sure that women weren’t subjected to derogatory practices, which impacted their dignity. It was pointed out, that gender equality and dignity of women were non-negotiable. It had been highlighted, that women constituted half of the nation’s population, and inequality against women should necessarily entail an inference of wholesale gender discrimination and thus the practice is against Part III of the constitution.

ISSUE III: Whether the practice of ‘Triple Talaq’ is protected bb the virtue of Article 25 of the Constitution of India.

Talaq-e-biddat isn’t protected by the exception laid down under Article 25, that is because of the reason that the court discovered that the practice of Triple Talaq is a non-essential practice for the religion. It was also given due importance about the very fact that while it’s practiced by the Hanafi School the same is contemplated to be sinful and most of the Islamic majority countries have banned them. Triple Talaqis against the fundamental tenets of TheQuran and whatever is against the Quranis contrary to Shariat therefore, what’s bad in theology can’t be good in law. The majority bench relied on its earlier decision Shamim Arawhich held that this practice of Triple Talaq is against both theology and law and just because it is followed by a sizable number of individuals it cannot be validated. Therefore, such practice is declared unconstitutional and set aside. Article 25 as such has four exceptions namely public order, health, morality, and other provisions of the Part III of the constitution. In the present case, there’s a violation of Article 14 as they have no say in the declaration of divorce unlike in other religions.

LATER DEVELOPMENTS OF SHAYARA BANO VS. UNION OF INDIA

ShayaraBano vs. Union of India isn’t any longer legally bindingthroughout India due to the bill introduced by the government in Lok Sabha criminalizing ‘TripleTalaq’ through The Muslim Women (Protection of Rights on Marriage) Bill, 2018. This bill was first passed in the Lower House and later on, came into force with the assent of the President.

CONCLUSION

In a country where the personal laws aren’t in accordance with the fundamental constitutional rights, this decision is a landmark step towards the protection of the women of the minority religion. The bill doesn’t only make the practice invalid but also penalizes the men who attempt to abandon their wives through triple talaq. The judgment is a living example of the actual fact that democratic notions like equality,liberty,etc wouldn’t be bend down against any philosophy whether or not if it is a religion.

[1]Shamim Ara vs State Of U.P. &Anr., (2002) 7 SCC 518. [2]Masroor Ahmad v State (NCT of Delhi) &Anr., ILR (2007) 2 Del 1329. [3]Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358. [4]Muslim Women’s Quest for Equality v. JamiatUlma-i-Hind and others. [5]Sardar Syedna Taher Saifuddin Saheb vs. The State of Bombay, 1962 AIR 853 [6]Commissioner of Police Vs. Acharya JagadishwaranandaAvadhuta,2004 (12) SCC 770 [7]ShayaraBano vs. Union of Inida and others, (2017) 9 SCC 1



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