Shayara Bano vs Union Of India And Ors.

 

 

Shayara Bano vs Union Of India And Ors. 

 

Citation- AIR 2017 9 SCC 1 (SC)

 

Facts

Shayara Bano, the Petitioner approached the Supreme Court of India , chastising the divorce pronounced by her husband, Rizwan Ahmad on 10^th October, 2015  within the presence of two witnesses Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain).The Wife  (petitioner) had prayed before the Hon’ble Supreme Court  sought a declaration, that the ‘talaq-e-biddat’ (divorce)pronounced by her husband  be declared as void ab initio, on the grounds that it was a direct and immediate violation of her constitutional rights. As a result, the constitutional validity of the Triple Talaq was presented, and questioned before a Bench of 5 judges of the Supreme Court, consisting of Rohinton Nariman J. , U.U. Lalit J. ,Kurian Joseph J. , CJI J.S. Khehar and Abdul Nazeer J.

 

Issues before the Court

 

1. Whether talaq-e-biddat was Islamic in nature

2. Whether the Muslim Personal Law(Shariat) Act , 1937 conferred statutory status to the subjects regulated by it or it was still covered under the Personal Law , which isn’t a law under Article 13 of the Constitution as per the previous Supreme Court Judgements

3. Whether The Act of Divorce was protected by Article 25 (Right to Freedom of Religion)

 

Contentions of the Petitioners

 

 

Mr. Amit Chadha: Argument supporting Shayara Bano (petitioner)

 

Mr. Amit Chandha mentioned during this case by arguing that under the Muslim personal law there was no recognized form of divorce called ‘Triple Talaq’. And a statement was also made like unilateral form of divorce and triple talaq had brought no Quranic sanction. It was also mentioned that Divorce under Muslim law needed two concepts namely reasonable cause and preceded attempt of reconciliation.  He also argued that , since it violated Article 14 and Article 15 of the Constitution, it should be struck down. He also gave a solution as an alternative form of divorce where irrespective of gender; the entire Muslim community will get divorce which is known as “Dissolution of Muslim Marriage Act, 1939”.

 

Mr. Salman Khurshid: Arguments supporting Shayara Bano 

 Mr. Salman Khurshid made an advent into argument by saying that under Quran, after reconciliation attempts failed and with reasonable cause, if a person uttered talaq 3 times, he can get divorce. And also, under Quran it is mentioned that the pronouncement of each talaq should accompany a waiting period of three months (Iddat) for reconciliation. The husband can permanently divorce his spouse by saying talaq for the third time, if they do not reconcile at the given duration of the reconciliation period.

 Mr. Salman Khurshid also stated that most of the Muslim communities which are prevailing are Sunni , who constitute 90 percent of the whole Muslim population in the World,  and they don’t follow the act of triple talaq as a valid one, as a result, it must be declared void.

 

 

 

 

Contentions of the Respondents

 

 

Mr. Kapil Sibal: Arguments supporting respondents (supporting AIMPLB): Mr. Kapil Sibal stated that the concept of judicial review is not acceptable in Case of Triple Talaq, since Muslim marriage is always subjected as a private contract or an agreement. He also mentioned that Article 13 does not include personal laws, and that Courts can access validity only after parliament made any changes on secular activities (freedom of religious practice) under Article 25(2). He also stated that, triple talaq was not a form of discrimination of Muslim women and if there was a bad marriage, the wife can claim remedies under. • Special marriage act,1954

• By delegating right to talaq to herself

• Insisting high mehar amount

 

Mr. Mukul Rohatgi: Arguments for respondent (supporting Union of India) :

Mr. Mukul Rohatgi questioned the constitutional validity of three grounds of triple talaq, polygamy, and Nikah halala. He argued on the basis of Narasu Appa Mali case,which stated that “Immunity to uncodified personal law from fundamental rights challenges” was to be revisited. In the Masilamani case, J. Kurian Joseph stated that religious personal law was also subjected to fundamental rights. Mr. Sibal stated the scope of Article 25.  He made a stressed statement like triple talaq is protected under art 14, 15, 21. He ended his argument by asking the Hon’ble court to invalidate triple talaq as it infringed Art 13,14,15,21,51 by removing sec 2 of Shariat act 1937.

 

Mr. Manoj Goel: Arguments in favor of Shayara’s husband: Manoj Goel stated in his argument that divorce is the decision between two individuals ,and that the state must not involve between the decision . To counter this statement, J. Nariman made a rebutted that the Shariat act 1937 included the state; therefore, the state’s involvement is obligatory.

 

Judgement

 

By a 3:2 majority, the constitutional bench of the Apex court held that triple talaq is an unconstitutional practice on 22nd August, 2017. The Judgement was reserved for this case after an argument which went for about 6 days. The Parliament was directed by the court to bring legislative measures against the practice of triple talaq by drafting new laws according to the Uniform Civil Code. Muslim personal law regulated talaqe-biddat which was the holding position of J. Rohinton Nariman,

J. Uday Umesh Lalit. Because of the arbitrariness, they held triple talaq as unconstitutional in nature. A Concurring opinion was given by J. Kurian Joseph where he stated that the triple talaq lacked the legal sanctity which he held due to arbitrariness of the holy qur’anic principle. The objective opinion was given by CJI Khehar and J.Abdul Nazeer in which they stated the personal laws to be a fundamental rights in the debate of constituent assembly on Art 25 and Art 44. They stated that triple talaq is protected under Art 25, because the act was a innate part of the Muslim personal law, although it was not regulated by the Shariat Act.

Both the Justices stated that it was impossible to challenge its constitutionality because of the fact, that to provide a solution to gender discriminatory practice is totally up to legislative action. The Judgement, till date is still applicable, and has not been overruled.

 

POV/Inference

 

Even though triple talaq was held unconstitutional by a 3:2 majority in apex court, an ambiguity still prevails on the part of reasoning which was given and proven by the judges. Triple talaq was considered as Un- Islamic and unconstitutional by Justice Nariman, Lalit, Joseph. Presently the law of the land is clear and it was abolished by the constitution of India and also to curb the menace the legislation was enacted by the government of India, and also a new beginning for the Introduction of a Uniform Civil Code in India.

 

 

 

 

 

Authored By- Supriyo Kundu

Surendranath Law college, Univ.Of Calcutta

BALLB Year III Semester VI