Shayara Bano Vs UOI and others
\nIntroduction
\n\u00a0A strong union of the married couple must be present for a successful family life. Islam favors
\nsubsistence of marriage and the breach of marriage must be avoided. However in some cases the marriage
\ncan be dissolved by various modes. Under Muslim law the divorce may take place by the act of the parties
\nthemselves or by a decree of the court of law. Talaq is also a mode of divorce. This article aims to study
\nwhat exactly is triple talaq, the controversies surrounding the said concept and finally the ban of the said
\npractice.
\nWhat is Talaq?
\n\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0 Talaaq in its literal sense means “setting free”, “letting loose”, or taking off any “ties or restraint”. In
\nMuslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal
\nsense it means dissolution of marriage by husband using appropriate words.
\n\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0 Triple Talaq:\u00a0Triple talaq is a mode of dissolution of marriage where a Muslim man can legally
\ndivorce his wife by pronouncing\u00a0\u201ctalaq\u00a0\u201cthree times. The pronouncement of the word could either be oral
\nor written, or even, delivered by electronic means such as telephone, SMS, email or social media.
\n\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0 Not only that the man need not state his reasons for the cause of divorce. The word pronounced
\nmakes the divorce effective irrespective of the wife\u2019s presence. After the period of\u00a0iddat, during which it
\nwas ascertained whether the wife is pregnant, the divorce became irrevocable.
\n\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0 In a nutshell in order to divorce his wife, the husband must say the phrase “I divorce you” (in Arabic,
\ntalaq) to his wife, three times\u00a0over a period of three consecutive months.\u00a0The idea behind prescribing the
\ncourse of the three month period is to check decisions based on impulse and give time for reconciliation.
\nIn traditional\u00a0Islamic jurisprudence, triple talaq is looked down, but is still considered to be legally valid,
\nform of divorce.\u00a0Changing social conditions around the world have led to increasing dissatisfaction with
\ntraditional Islamic law of divorce since the early 20th century and various reforms have been undertaken
\nin different countries.
\n\u00a0
\nSummary:\u00a0
\nShayara Bano was married for 15 years. In 2016, her husband divorced her through\u00a0talaq\u2013e-bidat\u00a0(triple
\ntalaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and
\nirrevocable divorce by pronouncing the word \u2018talaq\u2019 (Arabic for divorce) three times at once in oral,
\nwritten or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three
\npractices \u2013 triple talaq, polygamy, and\u00a0nikah halala\u00a0(the practice requiring women to marry and divorce
\nanother man so that her previous husband can re-marry her after triple talaq) \u2013were unconstitutional.<\/p>\n\n\n\n
Specifically, she claimed that they violated several fundamental rights under the Constitution of India
\n(Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination
\nincluding on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition
\nunderscored how protection against these practices has profound consequences for ensuring a life of
\ndignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive)
\ndiscrimination against women including by non-State actors, either directly or indirectly, violates not only
\nthe most basic human rights of women but also violates their civil, economic, social and cultural rights as
\nenvisaged in international treaties and covenants.
\nIn this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a
\nmajority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two
\nheld it to be unconstitutional while the third relied on case precedents to reiterate that such practice was
\nimpermissible under Islamic law.
\nThe majority judgment held triple talaq\u00a0to be unconstitutional under Article 14 read with Article 13(1). In
\nthis regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim
\nPersonal Law (Shariat) Application Act, 1937. The Court clarified that \u201c\u2026an action that is arbitrary, must
\nnecessarily involve negation of equality\u201d and determined, as triple talaq provides that \u201c\u2026the marital tie
\ncan be broken capriciously without any attempt at reconciliation so as to save it\u201d, this arbitrariness
\nviolates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and
\nenforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the
\ncommencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they
\nare inconsistent with the fundamental rights set out in the Constitution. The Court also considered
\nwhether triple talaq is protected under Article 25 but, following a review of relevant precedents and
\nIslamic scholarship, concluded that it\u00a0is not essential to the practice of Islam.
\nEnforcement of the Decision and Outcomes:\u00a0
\nThis decision means triple talaq is no longer legal throughout India. Following the judgment, and on its
\nown initiative, the government introduced a bill criminalizing triple talaq. The Lok Sabha (Lower house
\nof India’s bicameral Parliament) passed this bill in December 2017 and in accordance with
\nIndia\u2019s\u00a0legislative process, it is\u00a0currently\u00a0before the Rajya Sabha (Upper house) where a united opposition
\nhas demanded that it be sent for review to a parliamentary committee.<\/p>\n\n\n\n
Significance of the Case:\u00a0
\nWomen\u2019s rights groups and other human rights and social justice organizations in India have
\nwidely\u00a0celebrated\u00a0this historic judgment, which advances the essential constitutional values of equality,
\ndignity and secularism. While Muslim women have challenged triple talaq in courts previously, this was
\nthe\u00a0first instance\u00a0where a Muslim woman had challenged a triple talaq divorce on the basis that her
\nfundamental rights under the Constitution had been violated. While the Court did not address gender
\ndiscrimination explicitly, it is instructive to note that even the dissenting judgment noted \u201c\u2026that all
\nconcerned are unequivocal, that besides being arbitrary the practice of \u2018talaq-e-biddat\u2019 is gender
\ndiscriminatory.\u201d<\/p>\n\n\n\n
The Bharatiya Muslim Mahila Andolan (BMMA), a rights-based mass organization led by Muslim
\nwomen, and a party in the current case, conducted a\u00a0study\u00a0in 2015 which\u00a0found\u00a0that approximately 1 in 11
\nMuslim women were survivors of triple talaq, the majority receiving no alimony or compensation. This
\npractice has left\u00a0thousands of women\u00a0destitute, at times rendered homeless overnight along with their
\nchildren. In India different religions (for example, the Hindu, Muslim, and Christian communities) are
\ngoverned by their own\u00a0personal law\u00a0in family matters, pertaining for instance, to inheritance, property
\nrights, marriage, divorce and so on. It is possible, to an extent, to opt out of these personal law systems.
\nHowever, these systems remain widely prevalent and often incorporate systemic discrimination against
\nwomen. One commentator\u00a0notes\u00a0that, \u201c[t]he subtext of all personal laws, regardless of religion, is that
\nwomen are not equal to men.\u201d This reality undermines the ability of women to realize their other human
\nrights, including in relation to housing, land and resources in general. As\u00a0reflected\u00a0in a 2013 consultation
\nwith members of the International Land Coalition\u2019s network, \u201c[w]idespread gender-based discrimination
\nin laws, customs and practices cause severe inequalities in [women\u2019s]\u00a0ability to access and control land
\nand other natural resources, and limit their participation in decision-making in land governance, from the
\nhousehold to local and national institutions.\u201d The decision is particularly relevant because it addressed a
\npractice within the ambit of personal law through the lens of structural equality and within the framework
\nof fundamental rights. Now, in a limited way, it will be feasible to\u00a0test and challenge\u00a0other discriminatory
\npersonal laws against fundamental rights.
\nA lawyer involved in this case\u00a0noted, \u201c[t]he most important takeaway is that it has unleashed the energy
\nof Muslim women who for the last 25 years have been working on this issue.\u201d The case was driven by
\nrelentless grassroots activism and led from the front by women affected by the practice, strengthening the
\ngalvanization of women activists from the Muslim community working towards the realization of a range
\nof human rights.
\nWhile this case is a significant recognition of women\u2019s experiences and confirmation of their rights,
\nsubsequent events are a reminder that a sustained advocacy strategy is needed to ensure that other groups
\ndo not frame decisions to support their own interests. The National Alliance of People\u2019s Movements
\n(NAPM)\u00a0highlights\u00a0this tension by noting \u201c\u2026the propensity of the current ruling dispensation\u2026to
\nappropriate\u2026this judgement and\u2026use it to brand the Muslim community as regressive.\u201d For example,
\nthe government bill has been\u00a0criticized\u00a0by certain\u00a0commenters\u00a0as being less about gender justice and more
\nabout political persecution of a minority community. NAPM notes further, \u201c\u2026the need to re-emphasize
\nthat patriarchy needs to be fought within and across religions and legal reform must move in that
\ndirection, in consultation with women [and that] [d]emonizing minority religions, with a majoritarian and
\nauthoritarian approach,\u2026will be challenged, by all progressive forces\u201d.<\/p>\n","protected":false},"excerpt":{"rendered":"
Shayara Bano Vs UOI and others Introduction \u00a0A 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 […]<\/p>\n","protected":false},"author":167,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[26],"tags":[],"yoast_head":"\n