Judgments

SHAYARA BANO VS UNION OF INDIA (TRIPLE TALAQ JUDGMENT)

The Supreme Court with 3:2 majority held in Shayara Bano Vs. Union of India (2017) 797 SCR  that recognition and enforcement of Triple Talaq is constitutionally invalid.

FACTS OF THE CASE

Shayara Bano was divorced by her husband Rizwan Ahmad on 10.10.2015  by saying “talaq, talaq, talaq,  hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. From today I am ‘haram’ and I have become ‘naamharram’. In future you are free for using your life …”. The divorce was pronounced before two witnesses. The Petitioner sought declaration that the “talaq-e-biddat” pronounced by her husband on 10.10.2015 be declared void ab initio. It was also contended that such a divorce, which abruptly, unilaterally, and irrevocably severs ties of matrimony purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937,  is  unconstitutional.

Several other Writ Petitions were also under consideration of the Supreme Court questioning the constitutional validity of the Triple Talaq.

FINDINGS OF THE SUPREME COURT

Muslims in India are divided in mainly two sects – Shia and Sunni. The case pertains to only Sunni as Shia do not recognize Triple Talaq. Four sub-sects of Sunni are generally recognized – Hanafi School, Maliki School, Shafi School and Hanbali School. Majority of Muslims in India follow Hanafi School. Hanafi School in India has supported Triple Talaq amongst the Sunni Muslims for centuries.

Marriage in Islam is a contract and it can be terminated in certain circumstances. Indeed, Prophet Mahomed had declared divorce to be the most disliked of lawful things in the sight of God.

The Supreme Court rejected the argument of Personal Law Board that 1937 Act was not meant to enforce personal law, which was enforceable by itself through the Courts in India. The 1937 Act was only meant, as the non-obstante clause in Section 2 indicates to do away with custom and usage which is contrary to Muslim Personal law. The Supreme Court observed that all forms of talaq are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim Personal Law applicable to Sunnis in India.

The Supreme Court observed that 1937 Act is a law made by the legislature before the Constitution came into force, as such it would fall squarely within the expression “laws in force” in Article 13 (3) (b) and would be hit by Article 13 (1) if found to be inconsistent with the provisions of Part III of the Constitution to the extent of such inconsistency.

The Supreme Court rejected the argument that Triple Talaq is an essential part of Islamic faith and would therefore be protected by Article 25 of the Constitution of India. The Supreme Court observed that Article 25 only protects essential religious practice. Triple Talaq is not essential religious practice of Islam.

The Supreme Court noticed the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struct down as being violative of the rule of law contained in Article 14.

The Supreme Court after surveying several judgments held that the test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

The Supreme Court applied the test of manifest arbitrariness and observed that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq.  The Hanafi School of Shariat Law itself states that   this form of Talaq though lawful is sinful in that it incurs the wrath of God.

The Supreme Court observed that the fact the Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife which is essential to save the marital tie cannot take place. This form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.  This form of Talaq must, therefore, be held to be violative of the Fundamental Right contained under Article 14 of the Constitution of India.  

The Supreme Court struck down recognition and enforcement of Triple Talaq under the Muslim Personal Law (Shariat) Application Act, 1937.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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