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Case Summary
| Citation | Shayara Bano v UOI, SC, decided on 22 August, 2017 Case Analysis |
| Keywords | triple talaq, Article 14, 15, 21, 25 of Constitution, violence |
| Facts | Shayara Bano married to Rizwan for 15 years. The husband harassed her wife for dowry and did domestic violence and was divorced by him. Husband gave triple talaq by pronouncing it three times. Then this divorce is challenged by the Shayara Bano (wife) before the Apex court by filing a petition on the ground that Instantaneous Triple Talaq, Polygamy, and Nikah Halala in the personal law of Muslims violate rights in Articles 14, 15, 21 & 25. Many organizations supported her. She stated that the practices of Instant Triple Talaq, polygamy, and Nikah Halala were held to be unconstitutional, illegal, and violate fundamental rights like Articles 14, 15, and 21. |
| Issues | Whether the practice of talaq-e-biddat specifically mentioning Instantaneous Triple Talaq an essential practice of Islam? Whether the practice of Instantaneous triple talaq violate any fundamental rights of the constitution? |
| Contentions | Petitioner contended that the three practices held to be unconstitutional: (i) Talaq-e-biddat (ii)Nikah Halala (iii)Polygamy Divorce under Muslim law is in need of two concepts called reasonable cause and preceded attempt of reconciliation. Also argued that there is no mention of triple talaq in the Quran. Respondent contended that since Muslim marriage is a private contract, so judicial review is not acceptable. In Article 13, personal laws are not included. The court can check validity after making changes by the Legislature in Article 25 and triple talaq does not discriminate against Muslim women. But rather she can claim remedy under the Special Marriage Act or demand high mehr. |
| Law Points | On 22/08/2017, the SC pronounced the final judgment. It was a 5-judge bench consisting of Chief Justice Jagadish Singh Khehar, Justice Abdul Nazeer, Justice Rohinton Nariman, Justice U.U. Lalit and Justice Kurian Joseph. The majority is 3:2. The court found that triple talaq is not recognized by Muslim personal law (Shariat Law) and it is totally against the Quran including no sanction. The majority of Muslims (i.e., Sunni) do not follow triple talaq and therefore it is not an essential religious practice. The court stated that this practice was arbitrary and was against the basic practices of Shariat and basic tenets of the Quran and thus it cannot be protected under the fundamental right. This practice is only followed by the Hanafi School and is considered a sinful matter against the Quran thus it is not protected under Article 25. The court found that this practice is abolished by many Muslim countries as it lacks sanction from the Quran. Thus it is violative of the fundamental rights under Part III of the Constitution. |
| Judgement | Court held that triple talaq is unconstitutional as it is against Islamic theology. |
| Ratio Decidendi & Case Authority | Triple Talaq means a practice whereby uttering the word called ‘Talaq’ thrice times the Muslim man can get divorced. Nikah Halala also termed as tahleel marriage, in which a woman, through triple talaq was divorced, married another man, consummating the marriage, in order to remarry her former husband, she is getting divorced again. Polygamy means when husband marry many wives (4 allowed). |
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[…] Unit III: Divorce under Muslim lawExtra-judicial – Talaq, Khula, Mubarat (b) Judicial – The Dissolution of Muslim MarriagesAct, 1939Cases:01 Shamim Ara v. State of U.P., 2002 Cr LJ 4726 (SC) 23702 Masroor Ahmed v. Delhi (NCT) 2008 (103) DRJ 137 (Del.) 24203 Ghulam Sakina v. Falak Sher Allah Baksh, AIR 1950 Lah. 45 25504 A. Yousuf Rawther v. Sowramma, AIR 1971 Ker. 261 25905 Itwari v. Asghari, AIR 1960 All. 684 26906 Shayara Bano v UOI, SC, decided on 22 August, 2017 […]
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