AUTHOR: This article is written by Yadhukrishnan U, a sixth semester three year LLB student of Government Law College Thrissur. This article is all about the triple talaq case, religious freedom, right to equality and related topics.
Name of the case: Shayara Bano v. Union of India
Citation: AIR 2017 9 SCC 1 (SC)
Date of Judgment: 22nd August, 2017
Parties Involved: Shayara Bano and others, All India Muslim Personal Law Board (AIMPLB), Union of India
Bench: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, Justice K.M. Joseph.
INTRODUCTION
Shayara Bano v. Union of India and Ors is a landmark case dealing with Muslim family law in India decided by the Indian Supreme Court. This is not the first time that the validity of Triple Talaq has been challenged in the Courts of law.
The present judgment considers a plethora of cases where this issue has been previously highlighted as well. However, never before, has the constitutional validity of Triple Talaq been challenged before a Constitution Bench comprising of 5 judges of the Supreme Court.
FACTS OF THE CASE
Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution.
Talaq-e- bidat is a practice which gives a man the right to divorce his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent. Nikah Halala is a practice where a divorced woman who wants to remarry her husband would have to marry and obtain a divorce, from a second husband before she can go back to her first husband. And polygamy is a practice which allows Muslim men to have more than one wife. On 16th February 2017, the Court asked Shayara Bano, the Union of India, various women’ rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy.
The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported Ms Bano’s plea that these practices are unconstitutional. The AIMPLB has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution. After accepting Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional bench on 30th March 2017. The first hearing was on 11th May 2017. On 22nd August 2017, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring that the practice was unconstitutional by a 3:2 majority.
ISSUES
- Whether the Triple talaq is violative of Right to Equality under Article 14.
- Whether the triple talaq is violative of Right to Gender Equality under Article 14 and Article 15.
ANALYSIS
PERSONAL LAW AND CONSTITUTIONAL LAW
On the face of it the Court’s decision was the right one to take but the approaches adopted by the majority judges seem to differ which gives rise to the debate on how to look at personal law in a secular country like India. It raises the question at what point is it acceptable for the Judges to take decisions on the constitutionality of an uncodified practice like triple talaq.
Justice Khehar does not look at it form the aspect of Muslim law but sees it completely form the point of view of the Constitution and if it can be held valid under the same. To which Justice Khehar replies on the similar lines of the opposition’s argument that personal law was not a state enacted law and only state enacted law can be subjected to Fundamental Rights. However the major flaw which can be seen in the following argument that how a practice which even though is not codified under the personal law, is authorized and enacted by the State not be under the scope of law of the sovereign.
Now looking at Justice Niraman’s argument we find that he does consider triple talaq to be “law in force” as per Article 13. With a very reasonable argument that since Section 2of Muslim Personal Law (Sharia) Act 1937 gives talaq in general authority so it automatically comes under the supervision of the state laws.
Thus the obvious question that comes before us here is, are any relevant fundamental rights being violated, specifically Article 14 and Article 15 which cover Right to Equality or can it be saved by fundamental right like Right to Religion i.e Article 25.
RIGHT TO EQUALITY UNDER ARTICLE 14
Violation of Article 14 can be not only found out by test of reasonable classification but also by the use of arbitrariness. Justice Nariman holds the practice mainly void under arbitrariness. However the conclusion at which he arrived seems to have been not based on the inequality of the two genders but the religious based conception of triple talaq to be arbitrary.
He does not necessarily show how the inequality per say exists but merely points out that this form of divorce is arbitrary because there is no mode of reconciliation. As pointed out by many scholars of the problem of arbitrariness it just shifts the focus more on arbitrariness rather that actually pointing out where the inequality exists.
RIGHT TO GENDER EQUALITY UNDER ARTICLE 14 AND ARTICLE 15
What is majorly missing in the judgement is the in depth analysis of gender inequality. Surprisingly even the petitioners did not bring out the inherent discrimination between the husband and wife and majorly focused on the practice of triple talaq being un-Islamic rather than bringing out the ills of triple talaq. This created a political situation of cultural minority versus modernity debate. As minority groups like All India Muslim Personal Law Board saw this as a question on their Muslim identity. This case could have seen almost the same result as the case of Shah Bano case.
Where the judgement delivered by 5 judge Hindu male, triggered the Muslim community by a plea to invoke Uniform Civil Code and the adverse comments made by court against Prophet and Islam. All of this led to drawing of sharp boundaries where Muslim women were called on to choose between their religion and their gender claims. Ultimately this led to Shah Bano completely renouncing the divorce maintenance. Fortunately nothing similar to those lines have occurred in this case. However maybe in the fear of not wanting a similar outcome the judgement almost ended up completely ignoring such an important aspect of equality. Therefor while giving the judgement in relation to equality marriage as an institution was given a higher priority.
RIGHT TO FREEDOM OF RELIGION
As far as religious aspects go the Justice Nariman did not agree that it would be under the protection of Article 25 as it only protects those practices which is an integral part of the religion which many scholars and commentaries on the same in Sharia have said it is otherwise.
While discussing triple talaq especially the religious aspect of the case Justice Joseph who although agreed with Justice Nariman but took a different route to achieve the end goal. He disagreed with Justice Nariman that it was not upon judges to decide on religious matters. In fact Justice Joseph goes no to say that when a private law is unclear on a particular issue it is left for the judge to decide what the law means to say. Therefore in this case the judge has to take the decision on what is the given scenario of the particular practice or custom as no one else can. He looked at this case completely form the cultures point of view and chose to ignore the constitutional aspect as according to him only the legal sanctity of triple talaq in Muslim personal law needed to be determined.
Therefore what we can see that Justice Joseph tactfully reaches the same outcome as many without actually having to reroute through constitutional rights, secularism or uniform civil code. He mainly relies on commentaries on Muslim Law and judgments relying on the commentaries on Muslim law by Muslim Judges – which was key in invalidating the triple talaq and maintaining a politically viable judgement, without causing a lot of communal backlash or tension.
CONCLUSION
It is no doubt that the triple talaq judgement has become a landmark judgement especially on the aspect of private law in this country. It has given us various different aspects on how to deal with them especially Justice Joseph’s “culturally grounded” judgement. This judgment definitely showed that the supreme court has learned from its past mistakes on personal law. Despite the fact that it lacked to give clarity on gender justice and inequality in personal laws and how they are to be treated. It also did not address if “setting aside” triple talaq meant that it had no legal effect at all or three utterance meant one.
Therefore all said and done, it is definitely a move towards equality and has given a backbone to how future personal law and social amendments need to take place. This judgement also handled the minority is a very viable way which is a step toward secularism. It is hoped that this judgement will be taken in the bright light and will help Muslim woman to live a better and more secure life as guaranteed by the law of the land.
REFERENCE
Constitutional Law of India
Dr. J. N. Pandey
56th edition 2019
