The Supreme Court of India passed a landmark judgment on the 22nd of August, 2017 in which it declared the practice of Triple Talaq as unconstitutional and the practice of the same be void. This was seen in the case of Shayara Bano vs Union Of India And Ors ((2017) 9 SCC 1), and was presided over by Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, Justice K. M. Joseph.
FACTS OF THE CASE:
Ms. Shayara Bano and her spouse, Mr. Rizwan Ahmed, married in Uttar Pradesh in April 2002. Ms. Bano said that her husband’s family ‘compelled’ her family to give dowry for the marriage. Her husband and his family allegedly drugged, abused, and eventually abandoned her when she was ill because her family could not give further dowry.
Mr. Ahmed divorced Ms. Bano in October 2015 using talaq-e-biddat, commonly known as instantaneous triple talaq. Talaq-e-biddat is a religious rite in which a man can divorce his wife immediately by repeating the word ‘talaq’ three times. The wife’s approval is not required for the practice.
Shayara Bano petitioned the Supreme Court for a declaration that three practices, talaq-e-biddat, polygamy, and nikah-halala, are unconstitutional because they violate the basic rights of women established in Articles 14, 15, 21, and 25 of the Indian Constitution.
The petitioner’s contention that these practices are unconstitutional was supported by the Union of India, as were women’s rights organizations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA).
As a result, the constitutionality of Triple Talaq was called into question before a Supreme Court Constitution bench of five judges and formulated the following issues:
- Is talaq-e-bidat (particularly, instantaneous triple talaq) an essential Islamic practice?
- Is Triple Talaq a violation of any fundamental right?
The Constitution Bench of the Supreme Court, by a 3:2 larger part, put away and proclaimed the act of quick Triple Talaq or Talaq-e-biddat to be unconstitutional under Article 14 read with Article 13(1) of the Indian Constitution.
The Muslim Personal Law (Shariat) Application Act 1937 is void where it perceives and upholds triple talaq, refering to Article 13(1), which expresses that all regulations in force preceding the beginning of the ongoing Constitution (counting the 1937 Act) are void where they are conflicting with the key fundamental rights revered in the Constitution.
The SC decided that the act of Talaq-e-biddat isn’t safeguarded by the special case set out in Article 25, as the court verified that it’s anything but an essential part of the Islamic religion.
As to the answer of what constitutes an essential practice, the court observed that “If by removing such practice it causes a significant change in the religion then such practice is an essential practice” and the same is protected by Article 25(1) of the Constitution.
The dissenting minority held that Triple Talaq isn’t regulated by the Shariat Act of 1937, yet is an inborn piece of personal law. Hence, it is safeguarded by Article 25. Further, the answer for the orientation unfair act of Talaq-e-Biddat is legislative activity and not a challenge to its constitutionality. The minority assessment suggested that Triple Talaq be made broken for a period of 6 months from the judgment. At this time, the Parliament should approach a regulation overseeing triple talaq.
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JUDGEMENT REVIEWED BY RAMASHESHAN P K.