Shayara Bano Versus Union of India – Danish Khan 

Shayara Bano Versus Union of India 

By 

Danish Khan 

BA LLB (3^rd year) 

danishofficial0731@gmail.com

INTRODUCTION:– 

Citation: AIR 2017 9 SCC 1 (SC) 

Petitioner: Shayara Bano 

Respondent: Union of India; Ministry of Law and Justice; Ministry of Women and Child  Development; Ministry of Minority Affairs; National Commission for Women; All India Muslim  Personal Law Board; Rizwan Ahmad 

Judges Bench (5): 

1. Justice Jagdish Singh Khehar, 

2. Justice S. Abdul Nazeer, 

3. Justice Rohinton Fali Nariman, 

4. Justice Uday Lalit, 

5. Justice K. M. Joseph  

Date of Judgment: 22nd August 2017 

The Shayara Bano case resulted in the Muslim practice of Triple Talaq being outlawed. By  saying the word “TALAQ” three times, a Muslim man can immediately file for divorce under the  “Sharia Law” without the help of the government. The communication methods may be written,  verbal, or even technological, which increased the vulnerability of a Muslim woman in this kind  of arbitrary and unilateral divorce. Arabic for “talaq” is the term for divorce. 

According to Sharia Law, there are three different kinds of divorce; only “talaq-e-biddat” is  irreversible. It is most common in Muslim communities in India that adhere to the Hanafi School  of Law. Muslim women are not allowed to divorce their spouses under this legislation, but  husbands are. In order to file for divorce under the Muslim Personal Law (Shariat) Application  Act of 1937, women must initiate a judicial action. Shayara Bano and Rizwan Ahmed were wed  for fifteen years. 

Rizwan divorced her in 2016 by means of an oral triple talaq (talaq -e biddat). She then filed a  Writ Petition before the Apex Court, stating that “practices of talaq-e-biddat, polygamy, and  nikah-halala should be held unconstitutional as a violation of Article 14, Article 15, Article 21,  and Article 25 of the constitution.”

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FACTS OF THE CASE:– 

∙ Shayara Bano was married to Rizwan Ahmed for 15 years, during which she endured  domestic violence and dowry harassment. In 2016, she was unilaterally divorced through  instantaneous triple talaq. Subsequently, she filed a writ petition before the Supreme  Court. 

∙ Article 14 (equality before law), Article 15 (non-discrimination), Article 21 (right to life  with dignity), and Article 25 (right to freedom of conscience and religion) of the Indian  Constitution were among the fundamental rights that were declared to be violated by the  practices of Instant Triple Talaq, polygamy, and Nikah Halala in Muslim personal law,  according to the petition. 

∙ Ms. Bano’s argument that these actions ought to be deemed unlawful was also backed by  the Union of India and women’s rights groups like the Bebaak Collective and the  Bhartiya Muslim Mahila Andolan (BMMA). They went so far as to ask the court to rule  that the Fundamental Rights applied to personal law. 

∙ Since these are fundamental Islamic practices that are safeguarded by Article 25 of the  Constitution, the All-India Muslim Personal Law Board (AIMPLB) has argued that  uncodified Muslim personal law is immune from constitutional judicial review and that  the Court lacked jurisdiction to consider a constitutional challenge to Muslim personal  law. 

∙ The court requested written responses from Shayara Bano, the Union of India, many  organizations that support women’s rights, and the All-India Muslim Personal Law Board  (AIMPLB) on February 16, 2017, regarding the challenges and matters pertaining to  polygamy, nikah-halala, and talaq-e-bidat.

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ISSUES DEALT WITH IN THIS CASE:– 

∙ Is it necessary and important to apply Triple Talaq immediately, as required by Islam? ∙ Is there a constitutional basis for triple talaq and does it violate any fundamental rights? ∙ Does the Triple Talaq practice contradict the Indian Constitution’s Articles 14, 15, 21,  and 25—fundamental rights? 

∙ What is the purpose and application of Sharia law in this particular context? LAWS INCLUDED:– 

∙ Article 14 – Right to Equality 

∙ Article 15 – Prohibition of Discrimination 

∙ Article 21 – Right to Life and Personal Liberty 

∙ Article 25 – Right to Freedom of Religion 

∙ The Muslim Women (Protection of Rights on Marriage) Act, 2019 

ANALYSIS:– 

Ms. Shayara Bano and Mr. Rizwan Ahmed were married in April 2002 in Uttar Pradesh. Ms.  Bano alleged that her husband compelled her family to provide dowry for their marriage. She  claimed that Mr. Ahmed and his family drugged, abused, and ultimately abandoned her when she  was ill because her family could not provide additional dowry. 

In October 2015, Mr. Ahmed divorced Ms. Bano using talaq-e-biddat, or instantaneous triple  talaq, a practice that allows a man to divorce his wife instantly by saying ‘talaq’ three times  without her consent. 

In February 2016, Ms. Bano filed a writ petition with the Supreme Court challenging the  constitutionality of talaq-e-biddat, polygamy, and nikah-halala. Polygamy, an Islamic practice, 

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permits men to have multiple wives, while nikah-halala requires a divorced Muslim woman to  marry and divorce another man before remarrying her first husband. 

Ms. Bano argued that these practices violated the Right to Equality, the Right against  Discrimination, and the Right to Livelihood. She further contended that these practices were not  protected by the Right to Freedom of Religion, which is subject to other fundamental rights,  public order, morality, and health. 

On February 16, 2017, the Supreme Court directed the All India Muslim Personal Law Board  (AIMPLB), the Union Government, and women’s rights groups like the Bebaak Collective and  the Bhartiya Muslim Mahila Andolan to submit written responses on the matter. All groups  except the AIMPLB supported Ms. Bano’s position. 

While the AIMPLB acknowledged that Shariat strongly condemns talaq-e-biddat, they argued  that the Court could not review uncodified Muslim personal law and claimed that these practices  were essential to Islam and protected by the Right to Freedom of Religion. 

On March 30, 2017, the Supreme Court formed a 5-Judge Constitution Bench comprising Chief  Justice J.S. Khehar and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit, and Abdul Nazeer to  hear the case. The Bench heard arguments from May 11 to May 19, 2017, and delivered its  judgment on August 22, 2017. In a 3:2 decision, the majority declared talaq-e-biddat ‘manifestly  arbitrary’ and unconstitutional. Chief Justice Khehar and Justice Nazeer dissented, arguing that  talaq-e-biddat was protected by the Right to Religion and that it was Parliament’s responsibility  to legislate on the issue. 

In July 2019, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act,  which criminalized talaq-e-biddat, making it punishable by up to three years of imprisonment.  This Act was subsequently challenged in August 2019 by the Jamiat Ulama-I-Hind, Samastha  Kerala Jamiathul Ulema, and the President of the Rashtriya Ulema Council through separate  

petitions to the Supreme Court. However, the Court has yet to begin hearing arguments on these  petitions.

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CONCLUSION:– 

In the case of Shayara Bano v. Union of India, the Supreme Court declared the practice of triple  talaq (talaq-e-biddat) unconstitutional by a 3:2 majority. Recently, on July 30, 2019, the Indian  Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019. This  legislation declared the practice of triple talaq illegal, unconstitutional, and made it a punishable  offense effective from August 1, 2019. The courts have thus delivered justice to women who  have been victims of triple talaq, ensuring that the principles of equality, particularly gender  equality, are upheld in practice and not just as theoretical concepts.

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