Triple Talaq Case Study.docx

Shayara Bano and ors, vs. Union of India

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Shayara Bano and ors, vs. Union of India

School of Law Ajeenkya D Y Patil University Project On Shayara banu & ors Vs. Union of India Writ Petition (Civil) No. 118 of 2016.

Submitted to

Submitted by:

Prof. Sunishtha Moghe

Sharanya Nair B A.LLB [ SEMv]

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Shayara Bano and ors, vs. Union of India Table of Contents 1. 2. 3. 4. 5. 6.

Introduction Basic understanding of the case Material facts of the case Major issues involved in the case Arguments presented by both the parties Judicial attitude towards the case  Honourable Supreme Court Judgement 7. Conclusion 8. Cases referred 9. References

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Shayara Bano and ors, vs. Union of India INTRODUCTION The purpose of the project is to analyze Triple Talaq thoroughly from the origin and till the present use. Triple talaq is the current socio-legal topic which questions the legality of this practice and questions the equality promised under Constitution. . The project will highlight the various reasons to take down this inimical practice of divorce and the steps to remove it from the society. The purpose of Talaq-ibiddat has been overthrown by the patriarchy of Muslim society in India leading to devastating consequences. Thus, the unconstitutional and un-Islamic way of divorce must be abolished. Triple talaq is one of the obnoxious practices that have been followed by the Muslim where in pronouncement of talaq word three times leads to dismissal of marriage. It is a custom that is being followed by the Muslims. This Talaq is also known as Talaq-i-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a Talaq in which there was no opportunity for reconciliation. This practice came into light in the case of Shah bano v. Mohd. Ahmed Khan 1985 SC (3)844 , where the wife besides seeking alimony from her husband who gave her triple talaq, also challenged the long term practice of triple talaq, nikah halal and polygamy . The matter came to a close with the passing of Muslim Women (Protection of Rights on Divorce Act), which made it necessary for the husband to pay alimony. This issue was raised as the Muslim women’s were seeking justice for violation of their basic fundamental rights.

Basic Understanding of the case: This part will seek to explain the structure of the Case-law, as to what were the facts involved, how the dispute developed between the parties, what were the issues involved, the contentions raised by parties in the courts. On the basis of this part the approach of the court would be easily understandable, which is being discussed in the second part.

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Shayara Bano and ors, vs. Union of India MATERIAL FACTS OF THE CASE: 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 remarry 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.

Major issues involved in the case 1. Do talaq-e-biddat violating the fundamental rights of the Muslim women’s as guaranteed by the Constitution of India. 2. Does talaq-e-biddat violate the parameters expressed in Article 25 of the Constitution ,or, practice of talaq-e-biddat cannot be protected under the rights granted to religious denomination.

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Shayara Bano and ors, vs. Union of India

Advanced arguments by the petitioner: 1. The practice of ‘talaq-e-biddat’, according to learned counsel Mr.Amit Singh Chadha, Senior Advocate, permitted a male spouse an unqualified right, to severe the matrimonial tie. It was pointed out, that the right to divorce a wife, by way of triple talaq, could be exercised without the disclosure of any reason, and in fact, even in the absence of reasons. It was submitted, that a female spouse had no say in the matter, in as much as, ‘talaq-e-biddat’ could be pronounced in the absence of the wife, and even without her knowledge. It was submitted, that divorce pronounced by way of triple talaq was final and binding, between the parties. These actions, according to learned counsel, vested an arbitrary right in the husband, and as such, violated the equality clause enshrined in Article 14 of the Constitution. It was submitted, that the Constitution postulates through the above article, Equality before the law and equal protection of the laws. This right was clearly denied to the female spouse in the matter of pronouncement of divorce by the husband by adopting the procedure of ‘talaq-e-biddat’. This practice clearly showed the discrimination on the basis of gender (discrimination on the grounds of sex), that is violation of Article15. The counsel relied on the decision of the landmark cases, Kesavananda Bharti vs. Union of India and Minerva Mills vs. Union of India to contend, that it was the duty of courts to intervene in case of violation of any individual’s fundamental right, and to render justice. In order to press his claim based on Constitutional morality, wherein the petitioners were claiming not only gender equality, but also the progression of their matrimonial life with dignity, learned senior counsel placed reliance on Manoj Narula v. Union of India, where it was stated that, “The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevalent atmosphere and conditions. The counsel also stated that as Supreme Court is a Constitutional court, was obliged to perform its Constitutional responsibilities under Article 32 of the Constitution, as a protector, guardian of citizens rights under Article 14, 15 and 21 of the Constitution. 2. It was contented that the discrimination on the basis of gender is violating the Constitutional right of equality, to support the above statement the counsel relied on the case of, Charu Khurana v.Union of India, in this a female makeup artist was denied of the membership of make-up artist the Cine Costume Make-up Artists and Hair Dressers Association, whose rules 6

Shayara Bano and ors, vs. Union of India only allowed men to be make-up artists. The court held that the petitioner could not be denied membership on the basis of gender and it was a clear violation of her right to equality and denial of her capacity to earn livelihood which affect her individual dignity and liberty. Therefore the court held that the association cannot violate Article 14 and Article 21 of the Indian Constitution. 3. The contention raised was that AIMPLB (All India Muslim Personal Law Board) had relied on ‘hadiths’ that was removed way back from the time of the prophet. It was submitted that talaq-e-biddat is neither recognized by the quran nor by the hadiths. Moreover it was submitted that talaq in one go that is talaq-e-biddat is sinful in quran It was also submitted, that the Quran did not recognize ‘talaq-e-biddat’. It was pointed out, that the Prophet Muhammad considered only two forms of divorce to be valid, namely, ‘talaq-e-ahsan’ and ‘talaq-e-hasan 4. The conferment of a social status based on patriarchal values, or a social status based on the mercy of the men-folk, it was contended, were absolutely incompatible with the letter and spirit of Articles 14 and 15 of the Constitution. The rights of a Muslim woman to human dignity, social esteem and self-worth, it was submitted, were vital facets of a woman’s right to life with dignity, under Article 21 of the Constitution. 5. It was submitted, that gender equality and the dignity of women, were nonnegotiable. It was stated that the women deserves equal participation in the development of the world’s largest democracy. 6. As stated in the Universal Declaration of Human Rights by the United General Assembly on 10.12.1948, the charter provides equal rights to men and women. Insofar as the present controversy is concerned, the provisions of the above declaration can be relied upon to check the validity of the practice talaq-e-biddat by treating it as a ‘rule of decision’ which stands clearly violating the norms of the declaration. In Githa hariharan v. Reserve Bank of India, the judgment emphasized the necessity to take measures to bring domestic law in line with the International conventions, so as to eradicate all sort of discrimination against women’s. 7. The right to equality is enshrined in the Preamble of the Constitution and the fundamental rights and DPSP is intended to remove all the discriminations on the basis of gender, religion etc. in SR Bommai v. Union of India [(1994)3SCC] held that Preamble is a part of the Constitution. 8. It was contented that ‘personal law’ must be consistent with the Constitution otherwise it will be considered as void under Article 13 if they violate the fundamental rights guaranteed in the Constitution. 7

Shayara Bano and ors, vs. Union of India 9. It was submitted that Article 25: Freedom of conscience and free profession, practice and propagation of religion. Subject to public order, morality, and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Itself postulates that the freedoms contemplated there under, were subject to the overriding principles enshrined in Part III – Fundamental Rights, of the Constitution. This position was affirmed in the judgment of John Vallamattom v. Union of India. 10.Shariat law is recognised with shariat act. It is a law2 and not religion. Triple talaq affects the status of the women and extrajudicial divorce is unconstitutional: Adv .Indira Jaising. 11.There is no definition of ‘personal laws’ in the Constitution, except an entry 5 in list III. This entry makes it clear that personal law is the law dealing with family and succession and not laws dealing with religion as such. 12.At last it can submitted that the concept of talaq-e-biddat is violating the fundamental rights as guaranteed by the Constitution of India that is Article14,15 and 21, talaq-e-biddat is unconstitutional and invalid.

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Shayara Bano and ors, vs. Union of India

Advanced arguments by respondent: 1. Triple talaq is an essential practice within Islam and it is accepted in the Hanafi School which has a large number of followers. 2. Hanafi School is a religious denomination and that every denomination has the right to practice religion is protected under Article 25 of the Constitution of India. 3. Marriage and divorce has sources in religious scriptures and thus are the matter of religion, protected under Article 25 and 26(b) of Indian Constitution. 4. Shariat is not a statutory law therefore it cannot be subjected to fundamental rights (part III) of the India Constitution. To affirm the statement the counsel relied on the case State of Bombay v. Narasu Appa Mali, in which it was held that uncodified laws are not laws or ‘laws in force’ under Article 13 of the Constitution of India and hence are not subjected to fundamental rights. 5. Violation of Article 25 and Article 26(b) is also unconstitutional as they are the in part III of the Constitution. 6. It is contended that the laws which are to continue in force under Art. 372(1) include personal laws, and as these laws are to continue in force subject to the other provisions of the Constitution, it is urged that by reason of Art. 13(1) any provision in any personal law which is inconsistent with fundamental rights would be void. But it is clear from the language of Arts. 372(1) and (2) that the expression “laws in force” used in this article does not include personal law because Art. 372(2) entitles the President to make adaptations and modifications to the law in force by way of repeal or amendment, and surely it cannot be contended that it was intended by this provision to authorize the President to make alterations or adaptations in the personal law of any community. 7. The petitioner has alleged that the practice of talaq-e-biddat is violative of Article 14, 15 and Article 21 of the Constitution of India. The fundamental rights enshrined in Article 14, 15 and Article 21 are against the state actions. Article 14, 15 and Article 21 can be invoked only against the state. Where, (a) Article 14 requires state to ensure equality before the law. (b) Article 15 prohibits discriminatory actions of the state on the grounds of , gender, caste, religion. (c) Article 21 is a protection for state actions prohibiting depriving anyone of the right to life and liberty. 9

Shayara Bano and ors, vs. Union of India But, the contentions advanced on the behalf of the petitioner is already rejected because, Shariat is not based on any state legislative action, it can be further held that Muslim personal law ‘Shariat’ cannot be tested on the touchstone of being a state action At last it can be concluded that grounds of talaq-e-biddat cannot be struck down.

Judicial Attitude towards the case This part seeks to explain the approach of the Honorable Supreme Court taken in the respect of the case. It will include the important details discussed in the judgment.

Decision of the Honorable Supreme Court of India The Supreme Court of India has declared talaq-e-biddat as unconstitutional by 3:2 majority. Here Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority judgment. Chief justice Khehar and Justice Abdul Nazeer dissented. Justice Kurian Joseph [majority ] He started his as What is bad in theology was once good in law but after the shariat has been declared as the personal law, whether what is quranically wrong can be legally right is the issue to be considered in this case. The simple question that needs to be answered in this case is only whether triple talaq has legal sanctity. This court in Shamim Ara v. State of UP and another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore in terms of Article 141, Shamim Ara is the law that is applicable in India. I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law. To freely profess, practice and propagate religion of one’s choice is a fundamental right guaranteed under the Constitution. That is subjected to following -1) public order,2)health, 3)morality 4)other provisions of part III dealing with fundamental rights. Under Article 25(2) states that ‘nothing in this Article shall affect the operation of any existing law or prevent the State from making any law-(a) 10

Shayara Bano and ors, vs. Union of India regulating or restricting an economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.” Freedom of religion under the Constitution is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue and anti-shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, In any case , after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence , there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the Constitutional protection given to triple talaq. I also have serious doubts as to whether , even under Article 142, the exercise of a fundamental right can be injuncted. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other Constitutional rights. I believe that reconciliation between the same is possible but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the Constitutional parameter without curbing the religious freedom guaranteed under the Constitution of India. however, it is not for the courts to direct for any legislation. Fortunately, this court has done its part in Shamim Ara. What is held to be bad in Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. Justices RF Nariman and UU Lalit [majority-judgment written by RF Nariman] Given that triple talaq is instant and irrevocable , it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families , which is essential to save the marital tie, cannot ever take place. Also as understood by the Privy Council in Rashid Ahmad, such triple talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara. This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that marital tie can be broken capriciously and 11

Shayara Bano and ors, vs. Union of India 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 393 fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognized and enforce triple talaq , is within the meaning of the expression ‘laws I force’ in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces triple talaq. Since we have declared Section 2 of the 1937 A ct to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary , we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him. Chief Justice Khehar and Justice Abdul Nazeer (minority judgment –written by Justice Khehar) In view of the position expressed above , we are satisfied , that this case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with the reference to talaq-e-biddat. We hope and expect, that this contemplated legislation will also take into consideration advances in Muslim ‘personal law’- Shariat as have been corrected by the legislation the world , we find no reason n , for an independent India , to lag behind. Measures have been adopted for other religious denomination , even in India , but not for the Muslims. We would also beseech different political parties to keep their individual political gains apart , while considering the necessary measures requiring legislation. Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands , from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months and a positive decision emerges towards redefining ‘talaq-e-biddat’- as one, or alternatively, if it is decided that the practice of talaq-e-biddat be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

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Shayara Bano and ors, vs. Union of India CONCLUSION The Supreme Court of India had delivered a landmark and a controversial judgment in the present case which has been proved as a turning point of women empowerment. Talaq-e-biddat which was declared as unconstitutional by the Supreme Court has restored the faith of the women’s of minority community on the judicial system. Since time immemorial women’s were suppressed by the practice of talaq-e-biddat, which had a direct affect on the dignity of the women’s which was a clear violation of the fundamental rights guaranteed by the law of the land. In this case the court tried to analyse and understand the basis of the religion, the law, morality and public order. It was a very difficult task for the court to come to the conclusion because though the Constitution guarantees equality, liberty, and prohibits discrimination it also gives the right to profess and to propagate the religion. It was understood y the court that the women’s are suffering a lot because of this practice. Moreover it was found that this practice lacks legal sanctity, therefore with this judgment ‘instant divorce’ or talaq-e-biddat was held unconstitutional and invalid in the eyes of law. This restores the basic principle of justice that is equality before law and no one should be denied of equality before the eyes of law.

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Shayara Bano and ors, vs. Union of India

Table of cases referred 1. 2. 3. 4. 5.

John Vallamattom v. Union of India Manoj Narula v. Union of India Narasu Appa Mali v. Union of India Charu Khurana v. Union of India Githa Hariharan v. Union of India

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