Shayara Bano Vs UOI and others
Introduction
A strong union of the married couple must be present for a successful family life. Islam favors
subsistence of marriage and the breach of marriage must be avoided. However in some cases the marriage
can be dissolved by various modes. Under Muslim law the divorce may take place by the act of the parties
themselves or by a decree of the court of law. Talaq is also a mode of divorce. This article aims to study
what exactly is triple talaq, the controversies surrounding the said concept and finally the ban of the said
practice.
What is Talaq?
· Talaaq in its literal sense means “setting free”, “letting loose”, or taking off any “ties or restraint”. In
Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal
sense it means dissolution of marriage by husband using appropriate words.
· Triple Talaq: Triple talaq is a mode of dissolution of marriage where a Muslim man can legally
divorce his wife by pronouncing “talaq “three times. The pronouncement of the word could either be oral
or written, or even, delivered by electronic means such as telephone, SMS, email or social media.
· Not only that the man need not state his reasons for the cause of divorce. The word pronounced
makes the divorce effective irrespective of the wife’s presence. After the period of iddat, during which it
was ascertained whether the wife is pregnant, the divorce became irrevocable.
· In a nutshell in order to divorce his wife, the husband must say the phrase “I divorce you” (in Arabic,
talaq) to his wife, three times over a period of three consecutive months. The idea behind prescribing the
course of the three month period is to check decisions based on impulse and give time for reconciliation.
In traditional Islamic jurisprudence, triple talaq is looked down, but is still considered to be legally valid,
form of divorce. Changing social conditions around the world have led to increasing dissatisfaction with
traditional Islamic law of divorce since the early 20th century and various reforms have been undertaken
in different countries.
Summary:
Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-bidat (triple
talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and
irrevocable divorce by pronouncing the word ‘talaq’ (Arabic for divorce) three times at once in oral,
written or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three
practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce
another man so that her previous husband can re-marry her after triple talaq) –were unconstitutional.
Specifically, she claimed that they violated several fundamental rights under the Constitution of India
(Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination
including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition
underscored how protection against these practices has profound consequences for ensuring a life of
dignity. Further, it 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 most basic human rights of women but also violates their civil, economic, social and cultural rights as
envisaged in international treaties and covenants.
In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a
majority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two
held it to be unconstitutional while the third relied on case precedents to reiterate that such practice was
impermissible under Islamic law.
The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In
this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim
Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must
necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie
can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness
violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and
enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the
commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they
are inconsistent with the fundamental rights set out in the Constitution. The Court also considered
whether triple talaq is protected under Article 25 but, following a review of relevant precedents and
Islamic scholarship, concluded that it is not essential to the practice of Islam.
Enforcement of the Decision and Outcomes:
This decision means triple talaq is no longer legal throughout India. Following the judgment, and on its
own initiative, the government 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 is currently before the Rajya Sabha (Upper house) where a united opposition
has demanded that it be sent for review to a parliamentary committee.
Significance of the Case:
Women’s rights groups and other human rights and social justice organizations in India have
widely celebrated this historic judgment, which advances the essential constitutional values of equality,
dignity and secularism. While Muslim women have challenged triple talaq in courts previously, this was
the first instance where a Muslim woman had challenged a triple talaq divorce on the basis that her
fundamental rights under the Constitution had been violated. While the Court did not address gender
discrimination explicitly, it is instructive to note that even the dissenting judgment noted “…that all
concerned are unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’ is gender
discriminatory.”
The Bharatiya Muslim Mahila Andolan (BMMA), a rights-based mass organization led by Muslim
women, and a party in the current case, conducted a study in 2015 which found that approximately 1 in 11
Muslim women were survivors of triple talaq, the majority receiving no alimony or compensation. This
practice has left thousands of women destitute, at times rendered homeless overnight along with their
children. In India different religions (for example, the Hindu, Muslim, and Christian communities) are
governed by their own personal law in family matters, pertaining for instance, to inheritance, property
rights, marriage, divorce and so on. It is possible, to an extent, to opt out of these personal law systems.
However, these systems remain widely prevalent and often incorporate systemic discrimination against
women. One commentator notes that, “[t]he subtext of all personal laws, regardless of religion, is that
women are not equal to men.” This reality undermines the ability of women to realize their other human
rights, including in relation to housing, land and resources in general. As reflected in a 2013 consultation
with members of the International Land Coalition’s network, “[w]idespread gender-based discrimination
in laws, customs and practices cause severe inequalities in [women’s] ability to access and control land
and other natural resources, and limit their participation in decision-making in land governance, from the
household to local and national institutions.” The decision is particularly relevant because it addressed a
practice within the ambit of personal law through the lens of structural equality and within the framework
of fundamental rights. Now, in a limited way, it will be feasible to test and challenge other discriminatory
personal laws against fundamental rights.
A lawyer involved in this case noted, “[t]he most important takeaway is that it has unleashed the energy
of Muslim women who for the last 25 years have been working on this issue.” The case was driven by
relentless grassroots activism and led from the front by women affected by the practice, strengthening the
galvanization of women activists from the Muslim community working towards the realization of a range
of human rights.
While this case is a significant recognition of women’s experiences and confirmation of their rights,
subsequent events are a reminder that a sustained advocacy strategy is needed to ensure that other groups
do not frame decisions to support their own interests. The National Alliance of People’s Movements
(NAPM) highlights this tension by noting “…the propensity of the current ruling dispensation…to
appropriate…this judgement and…use it to brand the Muslim community as regressive.” For example,
the government bill has been criticized by certain commenters as being less about gender justice and more
about political persecution of a minority community. NAPM notes further, “…the need to re-emphasize
that patriarchy needs to be fought within and across religions and legal reform must move in that
direction, in consultation with women [and that] [d]emonizing minority religions, with a majoritarian and
authoritarian approach,…will be challenged, by all progressive forces”.
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