SHAYARA BANO CASE ANALYSIS

Authors:

Manvi Goel, Jindal Global Law School

Nithya Sowmya, Tamil Nadu National Law University

Devesh Singh


Editor:

Puru Pratap Singh, GNLU



INTRODUCTION

Talak-ul-biddat or popularly known as triple-talaq impacted the social status and dignity of Muslim women. We cannot even imagine the metal insecurity that a relationship of years can be ended by uttering three words. The Muslim community considered it to be an integral part of their sharia law and many women also considered it to be so, but the suffering and cruelty which it brought with is unimaginable many thinkers considered it to be one of the many reasons behind poor social conditions of women in Muslim community. These discriminatory laws were not only dragging the growth rate but were also considered to be a breeding ground for many other such cultures. The misuse of such laws have ruined many lives and it was necessary to finish such laws, and the light of hope came from the famous case of Shayara Bano Vs UOI[1], This case not only questioned the constitutional validity of triple talaq custom but was also a stepping stone to question other discriminatory practices which were going on freely in the name of religion.

Facts of the case:

In this case the petitioner Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through triple talaq or talak-ul-biddat. She filed a writ petition in the Supreme Court asking to hold three practices namely talak-ul-biddat, polygamy and nikah-halala unconstitutional as they violate Article 14, 15, 21 and 25 of the Indian Constitution.

Shayara Bano vs Union of India & Ors

Issue: Is Triple Talaq Islamic in Nature?

According to Koran, there needs to be four serious attempts at reconciliation as well as arbitration, after which the first divorce can be uttered by the Muslim husband. It is followed by Iddah- three month waiting period. If within those three months, the dispute gets resolved between the two parties, then they can continue being married and there will be no further legal procedure for remarriage. However, after the three-month period is over, the husband can either construct a contract of remarriage or file for the final divorce in front of two eye witnesses.

It should be noted that this is the only form of divorce given in Koran. There are other forms of divorces such as Talaq-e-hasan, Talaq-e-Ahsan and Talaq-e-Tafweez but they are not mentioned in Koran. In fact, they are just concepts found in Hanafi Jurisprudence.

As held by Ahl-e-Hadees sect, the pronouncement of three Talaq in one setting is not considered a divorce. As mentioned before, the first divorce only becomes valid after Iddah.

Moreover, seeing the injustice bestowed on Muslim Women, Supreme Court will be well within their rights under Article 141[2] and 142[3] of the constitution if they wanted to law down the procedure of divorce mentioned in Koran (after consulting The Muslim Personal Law (Shariat) Application Act, 1937)[4].

Hence, Triple Talaq is Un-Islamic in nature.

Issue: Is the Judgement in violation of Muslim Personal code or not?

In the case of Shayara Bano, the Supreme Court majority decision held that Triple Talaq was unconstitutional. In the majority three decision only two Justice RF Nariman and Justice UU Lalit had held it is as unconstitutional directly and the third Justice Kurian Joseph held it unconstitutional because he found triple talaq is un-Islamic. “What the majority judgment has held is that the practice of Triple Talaq (Talaq e Bidat) is illegal, un-Islamic and violates Islamic law itself. In that sense, the Supreme Court has actually recognised that true Islamic law is progressive and does not violate women’s rights; only the un-Islamic practice of triple talaq does.”[5] The words from book Muslim Law in India and Abroad is cited in this judgement to denote that the judgement has recognised the progressiveness of Islamic law rather than the Muslim Personal Law. According to Muslim Personal Law, a male can divorce his wife by saying talaq three times. Earlier it was like there is a time gap between each talaq but later on they have started to tell talaq three times at an instant and divorce his wife. Also according to the law the wife is entitled to maintenance for only 3 Idat period or till 3 menstrual cycle which is the most unfavourable practice against the Muslim women. This was first brought up into notice in Shah Bano Case[6] where after that the Muslim Women (Protection on Rights of Divorce) Act, 1986 law was enacted in the parliament. But still in her case the Supreme has ruled that the maintenance can be given only during Idat Period according to Muslim law but Danial Latifi her lawyer challenged this ruling but later she withdrew her case but it paves a way for other Muslim women to fight against this Un-Islamic practice which is a result of Shayara Bano case that the Triple Talaq was unconstitutional.

With reference to the above Triple Talaq judgement violates the Muslim Personal Law but there the question arises of whether it is said in Quran, if we look into that nowhere in Quran has mentioned about the instant Triple Talaq, hence it is Un- Islamic, with that the court ruled it as unconstitutional.

Issue: Is Triple Talaq Violating Fundamental Rights?

The case of Shayara Bano made Supreme Court question certain aspects of the Islamic personal law that were associated with Article 14[7], 15[8] and 25[9] of the Indian Constitution. The practice of Talaq-e-Bidat treats women like chattel, which is neither congruent nor promotes gender equality. Moreover, against many opinions, SC also stated that it was not integral part of Islamic faith, therefore not benefitting from Article 25(Freedom of Religion).

Article 14 was struck down by the judges on account of being disproportionate, capricious and irrational. Justice Nariman said:

"…This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.”[10]

The fact that only Muslim men are allowed to give divorce under Talaq-e-Bidat through any mode of communication violates Article 15 of the constitution. Muslim Women not only have to go through the physical, financial and mental trauma but are also robbed of divorcing their husbands under this form of divorce. Hence, Triple Talaq openly discriminates against women under Article 14, 15, 25 of Indian Constitution and takes away their right to make their voices heard in the divorce.

THE LOOPHOLES IN THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT.

After the judgement in Shayara Bano case the parliament passes the Muslim Women (Protection of Rights on Divorce) Act which criminalises the Triple Talaq as cognizable offence rather than making it invalid under the law which creates a dividing among the other women and the Muslim Women. Just to utter a words three times will the law allow to put fine, arrest without, 3 years jail term and also the bail can be given at the discretion of Magistrate only which makes the judgement to look as having no legal meaning. And also according to this new law everything will be decided by the Magistrate only so if the magistrate acts in bias then the case will turn against the Muslim law. This does not clearly mention about the particular thing and leaves everything the hands of Magistrate.

CONCLUSION

This case provided the much needed relief for many women and was considered an eye opener for the society because such practices are still prevalent in our society and is only prevalent because the people decide to keep their mouth shut. It gave people a ray of hope. It gave the women wisdom that it’s never too late to speak for what is right After this case many other philosopher felt the need of a uniform civil code and demanded that these personal laws should be checked deeply and only the Muslim personal laws but the personal laws of other religion too. As a society will never flourish it the roots are still stuck in mud.

[1] Shayara Bano v. UOI (2017) 9 SCC 1 [2] Article 141 of the Constitution: law declared by SC is binding on all courts in India. [3] Article 142 of the Constitution: SC should do “complete justice” in any case. [4] The Muslim Personal Law (Shariat) Application Act, 1937 [5] Saif Mahmood, Muslim Law in India and Abroad. [6] Mohd. Ahmed Khan v. Shah Bano Begum 1985 AIR 945 [7] Article 14 in the Constitution of India,1949: Equality before law. [8] Article 15 in the Constitution of India, 1949: Right against discrimination. [9] Article 25 in the Constitution of India, 1949: Freedom of Religion. [10] Shayara Bano v Union of India (2007) 9 SSC 1

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