Impugned practice is a tool by which marital tie can be broken on whims of Husband without any attempt of reconciliation to save it

Vaishnavi Annasaheb Nirmal | Manikchand Pahade Law College, Aurangabad | 5th February 2020

Shayara Bano and others v. Union of India and Others. (Writ Petition (C) No. 118 of 2016)

Facts of the Case:

Shayara Bano (Petitioner) was married to Rizwan Ahmed (Respondent) for 15 years. In 2016, he gave her divorce through instantaneous ‘Triple Talaq’ (talaq -e biddat).

She filed a Writ Petition in the Supreme Court asking it to hold three practices as unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution.

• Talaq-e-biddat,
• Polygamy,
• Nikah-halala.

Talaq-e- bidat is a practise which gives a man the right to divorce to his wife by uttering ‘talaq’ three times in one sitting (at once in oral, written or, more recently, electronic form). Without his wife’s consent. ‘Nikah Halala’ is a practise where a divorced woman who wants to remarry her husband would have to marry, and obtain divorce, from a second husband before she can go back to her first husband. ‘Polygamy’ is a practice which allows Muslim men to have more than one wife.

This immediate appeal was filed in the apex court by Shayara Bano a victim of this demonic practice. She claimed the enforcement of the Fundamental Rights mentioned under Article 14. In the mean-time there were numerous petitions challenging the same issue therefore, SC clubbed all the petitions in one and heard it. Various NGO’s and even union government was supporting the cause.

Issues of the Case:

1. Constitutional validity of ‘Triple Talaq’.
2. Whether Triple Talaq is a necessary religious practice?

Decision of the Court:

On 16th February 2017, the Court asked Shayara Bano, the Union of India, various women’ rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy. The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported the Ms Bano’s plea that these practices are unconstitutional. The AIMPLB has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution.

After accepting the Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional bench on 30^th March 2017. The bench that heard the controversial triple talaq case in was made up of multi-faith members.  The first hearing was on 11^th May 2017.

The Apex Court laid down this judgment on August 22, 2017 in 3:2 majority holding the practice of ‘Triple Talaaq’ unconstitutional. The majority judgment was written by Justice Nariman for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the majority opinion Chief Justice Kehar for himself and on behalf of Justice Nazeer wrote the minority opinion. While the majority upon lengthy discussion came to the conclusion that ‘Triple Talaq’ is not an essential religious practice but minority bench found this practice to be an essential religious practice.