Shayara Bano vs Union of India and other

 

Shayara Bano vs Union of India and others(2016)

 

ABSTRACT

Is triple talk unconstitutional?

The Shayara Bano judgment set aside the practice of talag-e-bidat, which allowed Muslim men to divorce their wives instantaneously and irrevocably  .Along with Shah Bano case, it is one of the landmark judgments in protecting the rights of Muslim women in India.

 

INTRODUCTION

In Shayara Bano us Union of India and others, the Supreme Court of India set aside the practice of talaq-e-bidat, which allowed Muslim men to divorce their wives instantaneously and irrevocably.

Shayara Bano was the petitioner and Union of India and others were the respondents in the case.

 

BACKGROUND

Rizwan Ahmad married Shayara Bano on 11 April 2001 as per Shariat at Allahabad. The matrimonial relationship between them resulted in two children.

On 10 October 2015, Shayara Ban was divorced by her husband RizwanAhmad. wherein he affirmed ‘…the presence of witnesses saying that 1gave“talak, talak, talak" hence like this divorce from you from my wife. From this date, there is no relation between husband and wife. From today I am "haraam”,and I have become "naam harram". In future, you are free for using your life..."

Shayara Bano filed a petition in the Supreme Court and sought declaration that the 'talaqe-biddat' pronounced by her husband be declared as void ab initio.

 

ISSUES

• Whether the practice of Triple Talaq is constitutional?
• Whether the practice of Triple Talaq is an essential religious practice of Islam?

 

 

ARGUMENTS

The petitioner, Shayara Bano, submitted that the talaqe-biddat' (tripleTalaq) pronounced by her husband is not valid as it is not a part of shariat(i.e. Muslim personal law).

 

She argued that divorce of the instant nature cannot be treated as rule of decision' under the Shariat Act.

 

It was submitted that the practice of talaq-e-biddat' is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15and 21 of the Constitution.

 

Talaq-e-biddat' could be pronounced in the absence of the wife and even without her knowledge. It vests an arbitrary right in the husband and therefore violates Article 14.

 

She also argued that the practice of talaq-e-biddat' cannot be protected under the rights granted to religious denominations under Articles 25(1),26(b) and 29 of the Constitution.

 

It was submitted that the practice of talaq-e-biddat' is denounced internationally (a large number of Muslim theocratic countries have forbidden the practice of talaq-ebiddat), and therefore it cannot be considered sacrosanct to the tenets of the Muslim religion.

 

According to the petitioner, there is no mention of talaq-e-biddat' in theQuran. It is recognized only by a few Sunni schools.

 

Hence, Shayara Bano sought in her petition that ' such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony ,purportedly under Section 2 of the Muslim Personal Law (Shariat)Application Act, 1937 be declared unconstitutional.

 

On the other hand, Rizwan Ahmad submitted that Shayara Bano left her matrimonial home to live in her parental home. Despite his many requests, she refused to accompany him and therefore, refused to return to the matrimonial home.

 

He was informed by her father that the petitioner was not inclined to live with Rizwan Ahmad.Rizwan Ahmad further said that he felt that his wife was not ready for reconciliation and hence, divorced her by serving a 'talaq-nama".

 

Rizwan Ahmad argued that he had pronounced 'talaq' in consonance with the prevalent and valid mode of dissolution of Muslim marriages. Heal so submitted that the present writ petition filed by the petitioner under Article 32 of the Constitution of India is not maintainable as the questions raised in the petition are not justiciable under Article 32 of the Constitution.

 

It was pointed out that it was not the role of a court to interpret the Muslim 'personal law' - the Shariat.

According to the Union of India, the fundamental question for determination by the Court was that whether in a secular democracy religion can be a reason to deny equal status and dignity to Muslim women.

The Union of India contended that freedom of religion was subservientto the fundamental rights. The words employed in Article 25(1) of the Constitution, which conferred the right to practice, preach and propagate religion, were subjected to Articles 14 and 15. It was necessary to draw a line between religions per se and religious practices. It was submitted that the latter were not protected under Article 25.

 

It was also contended that the Constitution undoubtedly accords guarantee of faith and belief to every citizen, but every practice of faith could not be held to be an integral part of religion and belief.

AIMPLB contended that the expression 'custom and usage' in Article 13of the Constitution would not include faith of religious denominations embedded in their personal law.

 

WHAT IS TALAO?

Talaq is a means of a divorce, at the instance of the husband. There are three kinds of Talaq, namely 'talaq-e-ahsan', 'talaq-e-hasan' and 'talaq-e-biddat.

Other modes of divorce are Khula and mubaraat.

Khula is a divorce at the instance of the wife. The mubaraatis divorce by mutual consent.

 

THE JUDGMENT

The Supreme Court gave its judgment with 3:2 majority, holding that the triple Talaq is unconstitutional.

The majority bench of the Supreme Court observed that all forms of Talaq recognized and enforced by Muslim personal law are recognised and enforced by the Muslim Personal Law (Shariat) Application Act, 1937.

 

This would necessarily include Triple Talag when it comes to the Muslim personal law applicable to Sunnis in India. The 1937 Act is a law made by the legislature before the Constitution came into force.

Therefore, it would fall squarely within the expression laws in force' in Article 13(3)(b)and would be hit by Article 13(1), if found to be inconsistent with the provisions of Part Ill of the Constitution.

The Court observed that Triple Talaq is instant and irrevocable; any attempt at reconciliation between husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place.

 

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.

The Supreme Court also observed that Triple Talaq is not an essential religious practice. If a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down under Article 25.

 

Therefore, the court held Triple Talaq to be violative of the fundamental right contained under Article 14 of the Constitution of India.

 

IMPORTANCE

The Triple Talaq judgment provides a protective shield against gender discrimination in the name of religious practice.

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.

 

CONCLUSION OF SHAYARA BANO v UNION OF INDIA:

The landmark selection in Shayra Bano case is unquestionablya step towards equality, and it has supplied a basis for destiny private regulation and social amendments. This selection in Shayara Bano v UOI additionally treated the minority in a totally possible manner, that is a step towards secularism.

Although the number one consciousness become now no longer gender justice, it's going to have giant fantastic implications for advancing ladies’s rights and gender equality in India. It is anticipated that this judgement could be considered objectively andwill help Muslim ladies in residing a higher and extra stable lifeas assured via way of means of the regulation of the land.

 

 

(Name: Vamika Vashisth)