By:- Kaifi Khan
In The Supreme Court of India
|NAME OF THE CASE||Shayara Bano & Others v/s Union of India & Others|
|JURISDICTION||The Supreme Court of India|
|CITATION||AIR 2017 9 SCC 1 (SC)|
|DATE OF THE JUDGEMENT||22nd August 2017|
|PETITIONER||Shayara Bano & Others|
|RESPONDENT||Union of India & Others|
|BENCH/JUDGE||Rohinton Nariman, U. U. Lalit, Kurian Joseph, Jagdish Singh Khehar, Abdul Nazeer.|
|STATUTES/CONSTITUTION INVOLVED||The Constitution of India|
|IMPORTANT SECTIONS/ARTICLES||Article 14, 15 ,21 and 25|
The advocates of secularism have often shown their support for the form of governance in which it provides protection against the excesses and dangers of religious nationalism and bigotry. In fact, the reality is that, however, the differences between secular and religious systems of governance are often exaggerated, with secularism’s promises being in conversation with secularism’s failures. This particular article will be exploring one of the most recent and important instances of such secular failure which was represented by the high-profile Indian case of Shayara Bano v. Union of India.
This is case concerned about the legal legitimacy of a common Indian Muslim divorce practice which is often referred to as ‘triple talaq’ which is an animated sectarian and communitarian tension in India which is terribly failed to achieve the social peace promised by secularism. In fact, during the course of arguing its defence in Shayara Bano, a prominent Indian Muslim organization ended up engaging in sectarian modes of argumentation, whereby criticisms were cast on the Muslim’s sincerity of certain persons and communities. And in addition, withinside the route of determining Shayara Bano, a religiously various set of Indian Supreme Court Justices determined themselves disagreeing alongside communal traces approximately both the need of the secular country to ‘reform’ Muslim own circle of relatives law.
On 22 August 2017, The Supreme Court of India announced its verdict on one of the most significant issues i.e. on the constitutional validity of “Talaq-e-Biddat” popularly referred to as “Triple Talaq”. It is one of the three male initiated divorces in the Muslim community, the other two being “Talaq ahasan” and “Talaq Hasan”. As the name itself suggests, in this form of divorce a Muslim man can instantly divorce his wife after repeating the word “talaq” in one sitting, without any state intervention.
In this form of divorce, the means of communication could be in any form i.e. written, oral, or may be electronic. It further enhances a woman’s vulnerability in this unpredictable and unilateral divorce. In order to address the above issue, the Supreme Court in this case of Shayara Bano v. Union of India declared this evil custom unconstitutional by a majority of 3:2 ratio. This in future might have a ripple effect on various aspects of Constitutional Law, especially in the context of Fundamental Rights and its relation with the personal laws of the country, while also having an impact on the social aspect of gender justice which unfortunately the judgement does not discuss in detail as it mainly focuses on the validity of Triple Talaq in context to marriage as an institution.
On August 22, 2017, the Supreme Court of India gave a significant verdict that declared Muslim divorce through triple talaq unconstitutional. By the way of triple talaq ( Talaq-e-Biddat), Muslim men can give divorce to their wives instantly and without the state intervention by pronouncing the word “talaq” thrice. The case had been brought before the court by the petitioner i.e. Shayara Bano and all the other women who too have been divorced in this way only. The petitioner received support from various Muslim women’s groups. As the outcome of the above-mentioned issue, the court was split into 2 groups i.e. in a ratio of 3:2.
Among the two groups, the three judges in the majority regarded triple talaq as invalid but used different reasoning to arrive at their conclusion. Justices Rohington Nariman and U.U. Lalit was of the view that the 1937 Muslim Personal Law (Shariat) Application Act, in so far as it refers to triple talaq, violated Article 14 of the Indian constitution i.e. the right to equality. However, Justice Kurian Joseph argued that triple talaq was not a legitimate practice in Islam and was therefore illegal. The minority view which was held by Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer was that though triple talaq was undesired, the courts could not strike it down, and only the parliament could regulate on the matter.
The judgement may be a landmark one within the Indian women’s movement’s agitating for more rights under religion-based personal laws. At the same time, however, the aspect of gender equality, unfortunately, did not play such a strong role in the argumentation as it could have, and also the judgement doesn’t provide a transparent road map for addressing other discriminatory aspects within the personal law system in the coming future.
BACKGROUND OF THE CASE
Alike many other post-colonial states, India also maintains a personal law system. According to the personal law systems, certain family and property matters including marriage, divorce, maintenance, guardianship, adoption, succession and inheritance of Hindus, Muslims, Parsis and in addition to Jews are ruled through their respective spiritual legal guidelines. While personal laws in themselves are an ancient phenomenon, the Indian personal law system in its present form has been shaped considerably during colonial rule.
After attaining independence, the aim of enacting a Uniform Civil Code (UCC) in the arena of family law was placed in India’s new constitution in the form of Article 44. However, as of the present day, such a UCC has not been implemented yet. From a gendered point of view, the personal laws of not only Muslims but of all religious communities are problematic as they include inherent inequalities between men and women, as an example with reference to inheritance rights, polygamy, divorce grounds, child adoption or guardianship rights.
To reform the private legal guidelines in a few manners or the alternative has been at the timetable of the Indian women’s rights motion considering the fact that so long. Muslim women’s rights activists and organizations have performed a lively function in calling for reforms of Muslim personal, thereby forming a part of broader Islamic feminist movements.
The key law withinside the case handy is the Muslim Personal Law (Shariat) Application Act of 1937. According to section 2 of this Act, Muslim personal laws are applicable to the adjudication of cases between Muslims, while negating “customs and usages”. The Act specifically contains provisions of personal law, marriage, dissolution of marriage and it includes talaq also.
Triple talaq is the exercise beneath which a Muslim guy can divorce his spouse through uttering “talaq” 3 times. It is generally visible amongst India’s Muslim network primarily amongst people who comply with the Hanafi Islamic School of the idea. This mode of divorce isn’t universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce to be deferred, in many cases over a period of three months.
With the advent of technology, the idea of triple talaq has become easier to execute. Nowadays numerous instances are being reported about husbands sending messages or voice notes or maybe photographs over Snapchat to utter talaq and divorce their other halves. Before the Shayara Bano judgment, several cases were brought before the courts to unravel this matter. The right of such a divorce doesn’t have any reasonable grounds and it was vested only with the husband which made the wives silent victims. Thus on these grounds, the constitutionality of such a practice in India was challenged.
FACTS OF THE CASE
A Muslim female named Shayara Bano was married to Rizwan Ahmed for 15 years. Suddenly one day in 2016, he gave her divorce through instantaneous triple talaq (talaq-e-biddat). She couldn’t cope with the difficulty herself and in severe anger, she filed a writ petition within the Supreme Court asking it to maintain three practices:
- Nikah halala
Unconstitutional as they violate Articles 14, 15, 21, 25 of the constitution.
Talaq-e-biddat is a draconian practice that gives a man the right to divorce his wife by simply uttering talaq three times in one sitting and even without his wife’s consent. On the other hand, Nikah halala is a practice where a divorced woman who wants to remarry her ex-husband would first have to marry another man and obtain a divorce from the second husband and then only she could go back to her first husband. Whereas polygamy is an exercise which permits Muslim men’s to have a couple of spouses.
On the 16th of February 2017, the Supreme Court asked the petitioner i.e. Shayara Bano as well as to the Union of India and to the various women’s rights bodies including the All India Muslim personal law board to present written submission on the issues of talaq-e-biddat, nikah halala and polygamy.
The Union of India and the women’s right association like Bebaak collective and Bhartiya Muslim Mahila Andolan gave their support in favour of Ms Bano’s plea that these practices are unconstitutional. On the other hand, the AIMPLB has argued that an uncodified private regulation isn’t a concern with a constitutional judicial overview and that those are important practices of the Islamic faith and guarded beneath Article 25 of the constitution.
The Apex courtroom docket fashioned a five-judge constitutional bench on 30th March 2017 after accepting Shayara Bano’s petition. The first hearing took place on 11th May 2017. After a while sooner or later on the 22nd of August 2017, the five-judge bench pronounced its decision in the triple talaq case declaring that the practice was unconstitutional by a 3:2 majority.
ISSUES RAISED BEFORE THE COURT
The writ petition which was filed by Shayara Bano in the Supreme Court of India appealed to declare the draconian practices of Talaq-e-Biddat (Triple Talaq), Nikah Halala and Polygymy as unconstitutional.
The issues raised before the Apex court were as follows:
- Whether the practice of Talaq-e-Biddat is an essential practice of Islam,
- And if it violates any fundamental rights guaranteed to the citizens.
ARGUMENTS FROM THE PETITIONER’S SIDE
- The petitioner was represented by the senior advocate Mr. Amit Chadha. He first of all argued that the practice of Talaq-e-Biddat is not a recognised form of divorce under the Muslim personal law (shariat ) application act, 1937.
- He stretched this issue by stating that several high courts and Supreme Court decision have restricted the unilateral tar of Muslim men to divorce women and criticized the practice of triple talaq because it doesn’t have Quranic sanctions.
- He further urged the court to strike down the evil exercise of triple talaq as allowing an un-codified power to Muslim men to divorce their wives without their consents violates Article 14 and 15 of the constitution of India.
- Further, he asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the foremost basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.
ARGUMENTS FROM THE RESPONDENT’S SIDE
- The respondent was represented by advocate Mr. Kapil Sibal. He first of all clarified that the Shariat Act of 1937 doesn’t codify substansive Muslim personal law but he restated that the Shariat should be applied as a rule of decision to Muslim overriding any custom or usage to the contrary.
- He further asserted that the main object of the act was to overcome customs that discriminated against women in matter of inheritance. Moreover, since marriage is a personal contract in the Islamic law, no state legislation could change it.
- In order to prove his point, Mr Sibal referred to the constituent assembly debates to argue that the definition of law under Article 13 of the Indian Constitution does not include personal laws. He pointed out that the assembly had rejected various amendments that sought to include “and anything else” to the definition of law it considered and rejected the inclusion of such law under Article 13. He proved his point by mentioning that the explicit mention of personal law in the concurrent list and its absence in Article 13 of the Constitution of India demonstrated the constitution maker’s intention to exclude personal law.
- He further argued that the constitution of our nation empowers the Parliament to make social reform laws on secular activities associated with religious practices. Hence, only after the Parliament passes the law on the subject then only a court could assess on its validity.
- At the he concluded by saying that the Muslim women are not discriminated against triple talaq rule and may even get benefit for immediate relief from bad marriages.
- Article 14 of the Constitution of India: Article 14 of the Indian Constitution guarantees its citizen’s equality before law further as equal protection of the law to all or any person within the territory of India. This includes the equal subjugation of every individual to the authority of law, yet as equal treatment of people in similar situations.
The latter authorises the state to classify individuals for legal purposes, provided there should be a reasonable basis for the same, which means that the classification should be non-arbitrary and may be supported by a technique of intelligible differentiation among individuals who sought to be classified, moreover who have a rational relevancy to the object sought to be achieved by the classification.
- Article 15 of the Constitution of India: Article 15 of the Indian Constitution strictly prohibits discrimination on the grounds of faith, race, caste, sex, place of birth, etc.. This right can always be enforced against the state moreover as private individuals, with respect to free access to places of public entertainment or places of public resort maintained partly or wholly out of state funds. However, this article doesn’t preclude the state from making any special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled castes and Scheduled tribes. This exception has been provided since the categories of people mentioned above are considered deprived of and in need of special protection.
- Article 21 of the Constitution of India: Article 21 of the Indian Constitution is regarded as the heart and soul of the Indian Constitution. According to Article 21, “No person shall be deprived of his life or personal liberty except according to the procedures established by law”. Right to life is elemental to our very existence without which we cannot live as a human being and which has all those aspects of life which contribute to make a man’s life meaningful, complete and worth living. It’s the sole article within the Constitution of our country that has received the widest possible interpretations. Article 21 gives shelter, growth and nourishment to too many rights.
- Article 25 of the Constitution of India: Article 25 of the Indian Constitution guarantees freedom of religion to all individuals in India. It provides that each individual in India, subject to public order, morality, health, and other provisions: are equally entitled to freedom of conscience, and have the right to freely profess, practice and propagate religion. It further provides that this text shall not affect any existing law and shall not prevent the state from making any law relating to:
- Regulation or restriction of any economic, financial, political, or any secular activity related to religious practice.
- Providing social welfare and reform.
- Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus.
On 22 of August 2017, the 5 Judges Bench of the Supreme Court mentioned its selection withinside the triple talaq case, affirming that the exercise becomes unconstitutional with the aid of using a 3 is to 2 ratio. After 6 days of arguments from both sides, it reserved the case for judgement. The interesting fact about this case is that the five Judges bench gave three different lines of opinions.
Former Chief Justice Jagdish Singh Khehar delivered the minority opinion for himself and Justice S. Abdul Nazeer. The bulk judgement was presented by Justice Rohinton Fali Niraman and Justice Uday Lalit. Both of them delivered their view together and Justice K.M. Joseph took an entirely different approach to give his verdict but landed with the same decision hence in the ratio of 3:2. The courtroom docket directed the Parliament to take legislative measures towards the exercise of triple talaq.
On one hand where Justice Rohinton Nariman and Uday Lalit held that talaq-e-biddat is regulated by the Muslim personal law (Shariat) application act, 1937. They held that the exercise is unconstitutional due to the fact it’s miles glaringly arbitrary in nature. Justice Kurian Joseph on the other hand, in his opinion, mentioned that triple talaq is towards the Quran and so lack felony sanction.
He wrote, “What is held to be terrible withinside the holy Quran cannot be accurate in Shariat and, what’s terrible in theology is terrible in regulation as well”. Notably, the dissenting minority opinion of leaders Justice Khehar and Justice Abdul Nazeer traced the elevation of private regulation to the repute of essential rights withinside the constituent meeting debate on Articles 25 and 44. They held that triple talaq isn’t regulated with the aid of using the Shariat act of 1937, however is an intrinsic part of non-public regulation. Thus, it is miles blanketed with the aid of using article 25. Further, the answer to the gender discriminatory exercise of talaq-e-biddat is a legislative movement and now no longer an assignment to its constitutionality.
Following the judgement, and on its own initiative, the govt. introduced a bill criminalizing triple talaq. The Lok Sabha (Lower house of India’s bicameral Parliament) passed this bill in December 2017 and in accordance with India’s legislative process, it had been before Rajya Sabha (Upper House) where the triple talaq bill was passed with 99 to 84 votes. Now it is illegitimate for Muslim men to pronounce talaq 3 times for dissolution of marriage because it was finally passed by the Indian Parliament at the end of July.
We locate only a few factors on which a clean majority function emerges after having a view at the variations withinside the above stated 3 opinions. Even while the judges agree on the outcome, they achieve this for extraordinary reasons. Justices Nariman and Lalit located triple talaq to be un-Islamic and unconstitutional whereas, Justice Joseph doesn’t go into the query of constitutionality however reveals it to be un-Islamic and hence, invalid. Thus, never can it be concluded that during the Shayara Bano case, the Court has declared Talaq-e-Biddat to be unconstitutional.
On the alternative hand, we discover a thoroughly perplexing judgment on the problem of the constitutional fame of private regulation. Two judges keep at one factor that uncodified non-public regulation is past the scope of the Fundamental Rights, however following as an alternative doubtful logic, kept it at a later factor that the complete area of private regulation is covered and be counted of spiritual freedom, and that they verify Narasu.
While different judges keep non-public regulation to be issued to the Fundamental Rights, however, they do now no longer explicitly set apart Narasu. Whereas one judge rejects the proposition that uncodified Muslim non-public regulation may be examined in opposition to Fundamental Rights, rejects that it’s miles covered with the aid of using spiritual freedom, recognizes the ghost of Narasu, however, avoid the problem altogether.
Arguably, Justice Joseph’s method to the problem indicates that it may be tackled even without a constitutional challenge. But because the petitioners had raised the problem of constitutionality, the judges might want to have addressed the problem greater thoughtfully. In the end, the judgment in Shayara Bano doesn’t alternate the prison function of triple talaq that existed before, however creates confusion at the constitutional fame of private regulation and misses a top-notch possibility to tricky at the constitutional imaginative and prescient of justice for girls from minority spiritual groups.
It is no doubt that the triple talaq judgement has become a landmark judgement especially on the aspect of personal law in this country. It has given us various different aspects on how to deal with them especially Justice Joseph’s “culturally grounded” judgement. This judgment definitely proved that the Supreme Court has learned from its past mistakes on personal law.
Despite the fact that the verdict lacked to give clarity on gender justice and inequality in personal laws and how they are to be treated it also did not address if “setting aside” triple talaq meant that it had no legal effect at all or three meant one. Therefore all said and done, it is definitely a move towards equality and has given a backbone to how future personal law and social amendments need to take place. This judgement also handled the minority in a very viable way which is a step toward secularism. It is hoped that this judgement will be taken in the bright light and will help Muslim women to live a better and more secure life as guaranteed by the law of the land.