Author: Amrita Verma, University of Lucknow

Muslim law is an important personal law that covers both the sects of Muslims in India. But, as it is not codified, it is subjected to interpretations, it becomes difficult to ascertain the problems that many people face in actual life. The present case is one such glaring example that highlights cruelty to women in the name of divorce, especially like `triple talaq' or talaq-e-biddat. It means instantaneous divorce from a Muslim husband, who can utter three times talaq in the same sitting. The other two forms of divorce, talaq-e Hasan and talaq-e Ahsan, at least let husbands repent and get back, if pronounced in this form. But divorce by triple talaq cannot be revoked and taken back, if the husband realizes his mistake and regrets his conduct bereft of his wife, he cannot just take her back, and if he wants to re-marry her, she needs to go through the process of nikah-halala. For the process of Nikah Halala, the wife has to marry another man first, consummate that marriage, and get divorced again by the current husband to remarry her former husband. This is cruel in itself to women.

The major impact is observed on women whose lives are turned upside down within seconds. Such an admission is certainly reprehensible because it condemns the very lives of Muslim women to be subject to abuse and morbid conditions which are quite common for such women in terms of the socio-economic status under which they live; very few of them depend for sustenance on an income that is hardly enough to meet their basic needs. Husbands, on one hand, can initiate this whenever they wish, and on the other, women do not have a say in this at all. Shayara Bano is one of those women who had suffered that instantaneous talaq. However, unlike others, she did not keep quiet and fought back, thus creating history, not only in the Muslim personal law but also in the connections with the Constitution related to personal laws in India.

The petitioner, Shayara Bano was married to her husband Rizwan Ahmed for 15 years. In 2016, he orally divorced her by giving Talaq -e Biddat (Triple Talaq) (a practice in which a Muslim man can call off his marriage by reciting the word talaq three times and at one go). A writ petition was filed by Shayara Bano in the Supreme Court of India under Article 32 of Indian Constitution challenging the validity of the practice of Talaq-e-Biddat, Polygamy and Nikah-Halala in Muslim personal law on the ground that they violate the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution of India respectively. (Nikah Halala is the practice where a divorced woman wanting to remarry her former husband can do so only after marrying someone else, consummating the marriage and then getting a divorce the second marriage. And Polygamy is the act of Muslim men marrying more than one woman).

The Union of India, in addition to many women’s rights groups such as the Bebaak Collective and the Bharatiya Muslim Mahila Andolan (BMMA), had arguments in favour of Ms. Bano’s plea that these should be declared illegal. They appealed to the court to declare that fundamental rights extended to personal law. On the other hand, The All-India Muslim Personal Law Board (AIMPLB) countered that Article 13(2) of the Indian Constitution, immunes the uncodified Muslim personal law from constitutional review and that the court did not have jurisdiction to make a constitutional review of Muslim personal law because they are religious practices of Islam protected by Article 25 of the constitution.

The Court then on February 16, 2017, asked for written submissions to be made by Shayara Bano, The Union of India, Women’s Rights groups, All India Muslim Personal Law Board (AIMPLB) specifically on issues related to Polygamy, Nikah-Halala and Talaq-e-Biddat.

The Supreme Court has admitted the petition of Shayara Bano on 30^th March 2017, in which a 5 Judge constitutional bench was formed. A 5-judge bench on 22 August 2017 by 3-2 majority held the practice of triple talaq as unconstitutional.

The issues before the court are as follows :-

1. Whether the practice of Talaq-e-Biddat, specifically mentioning Instantaneous Triple Talaq, is an essential religious practice of Islam, protected under Article 25(1) of the constitution?

2. Whether the practice of Instantaneous triple talaq violates any fundamental rights of the constitution, guaranteed under Article 14, 15, and 21?

3. Does the Muslim Personal Law (Shariat) Application Act, 1937 (and related instruments) effectively confer legal sanctity (“laws in force”) upon triple talaq, making it subject to constitutional review under Article 13(1)?

On August 22, 2017, The five-judge bench of Supreme Court by 3:2 majority, (included hon’ble chief justice JS Kheher, Justices Justices Kurian Joseph, RF Nariman, UU Lalit, and Abdul Nazeer), declared the practice of Talaq-e-Biddat (or Instantaneous Triple Talaq) in Muslim personal law, unconstitutional and violative of Muslim women’s fundamental rights.

1. The court has held that even triple talaq falls short of being an essential part of Islamic practice since it is arbitrary and unconstitutional. It also held that the practice was inconsistent with the teachings of the Quran and not essential for Islam. 

2. The court stressed that triple talaq disregards Muslim women from their fundamental rights, which are protected under Articles 14, 15, and 21 of the Indian Constitution.

3. The court pronounced that personal law-systems, such as Muslim personal law, must not violate the constitutional mandates. Practices like triple talaq cannot be shielded under Article 25, which speaks about the freedom of religion. 

4. Striking down the practice of triple talaq, the court urged the Indian Parliament to bring in suitable legislation to regulate divorce among Muslims, insisting on gender-just secular laws in conformity with constitutional values.

A 3:2 majority SC ruled that the practice of triple talaq was unconstitutional. The majority opinion was penned by Justices R.F. Nariman and U.U. Lalit has a concurrent judgment, while Justice Kurian Joseph also delivered a concurrent judgment but expressed a separate opinion. Chief Justice J.S. Khehar and Justice S. Abdul Nazeer both, delivered dissenting opinions.Concurring Opinion:

Justice Nariman argued for himself and Justice Lalit by affirming that Talaq-e-Biddat is not intrinsic to Islam as practiced and struck it down as unconstitutional. The judgment reasoned that since Article 14 (right to equality) is manifestly arbitrary, it is therefore unconstitutional as it does not satisfy the test of constitutional validity. They underlined that arbitrariness is antithetical to equality, and a practice that allows a man to "whimsically and capriciously" break the marital tie cannot be subjected to Article 25. Justice Kurian Joseph held the practice to be wrong, although he did so on a somewhat different ground. He held Talaq-e-Biddat to be non-Quranic at best, hence with no legal efficacy in the Muslim personal law as being opposed to the tenets of the Holy Book. What's bad in theology, according to him, is also bad in law. He firmly asserted that Shariat cannot override the Quran, and further that any practice which does not conform to the Quran is not to be considered part of Islamic law.Dissenting Opinion:

The Chief Justice J.S. Khehar and Justice S. Abdul Nazeer both delivered the dissenting opinion. The minority stated that talaq-e-biddat is part and parcel of the Hanafi school of Sunni Muslims, having been practiced for no less than 1400 years.They have, therefore, claimed that it falls into Article 25, a personal law. They also pleaded self-restraint on the part of the courts and held that the matter should be left to legislation rather than be exposed to judicial interference. CJI Khehar suggested a six-month restraint on Muslim husbands from pronouncing a triple talaq, allowing Parliament to further develop the legislative framework. However, he concluded that since the practice is protected by the Muslim Personal Law (Shariat) Application Act, 1937, and had the force of law, it could not be struck down on the ground of arbitrariness unless a law was made to regulate or prohibit it.

The Shayara Bano ruling in India has had a significant impact, legally, socially, and politically. It has created an important precedent in law that ruled triple talaq illegal and unconstitutional. It also reaffirms, as a little taster of what might be considered in future cases of personal law devoid of rigid individual practice, the notion that fundamental rights and gender equality may rule over arbitrary personal practices. In undertaking this step, the ruling has made a point in providing legal recourse to Muslim women against unilateral and arbitrary divorce and empowering them against exposing such unjust termination in family and social setups. However, in effect, this led to some decline in usage of the Talaq-e-Biddat and increased deliberation among spouses for resolution. The case has become popularly known and it increased awareness against discrimination in the practice and made public discourses so fingering deeply an advocacy and policy convene on the status of Muslim women. Politically, this also runs changes that are made by law towards realizing the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalizes instant triple talaq. It is in section 3 under chapter 2 of the legislation that declares Talaq-e-Biddat void and illegal, and measure punishment under section 4 that must be meted out to anyone attempting to divorce his wife under Talaq-e-Biddat or triple talaq; punishment may be extended to 3 years of subjective imprisonment along with the imposition of fine.; and the wife is also entitled to receive amount or allowance for herself and her children from the husband as mentioned in section 5 of the act. The law which declares triple talaq as cognizable and compoundable, thereby infringing Section 7, makes it such that unless otherwise granted by the court on reasonable grounds, the husband shall not be entitled to bail. The decision captivated worldwide interest by being a watershed moment on gender justice and now sits in global discussions on religious freedom and women's rights. Furthermore, it fueled the societal dialogue effort of Indians about personal laws and constitutional morality at the same time affirming that the judiciary will have an indispensable role in protecting these marginalized communities through the interpretation of these constitutional guarantees.

The case of Shayara Bano was a groundbreaking judgment that transformed Indian constitutional jurisprudence, particularly at the intersection of personal law and fundamental rights. It raised the bold question of whether practices like Talaq-e-Biddat would be able to stand the test of constitutional morality. The argument is strongest on the ground that personal laws are not immune from constitutional scrutiny, particularly when they violate the rights to equality, dignity, and liberty of persons. Justice Nariman has based his argument upon Article 14 of the Constitution and the principle of manifest arbitrariness, which has struck at the very roots of any examination not as a religious custom but an unconstitutional practice. Another commendable aspect of the case was recognizing the lived reality of Muslim women, who generally suffer their husbandly ways under the currency of patriarchal practices sanctified in the name of religion. Although the judgment is largely legal in nature, in psychological terms, it recognized the social and emotional trauma which arbitrary divorces inflict. Further, it highlighted how triple talaq does not have any scriptural sanctity in the Quran and has been abolished in a number of Islamic countries already, thus reinforcing the rationale of the Court that it was not an "essential religious practice." 

However, the case had its shortcomings. The most glaring failure was the incompleteness of the scope-although triple talaq was declared unconstitutional, there was no adjudication on nikah halala and polygamy, although both were mentioned in the pleading. These practices are also discriminatory on the basis of gender and ought to have been dealt with. Critically, the focus by the judges was too much on the religious invalidity of triple talaq rather than the larger perspective concerning gender inequality and patriarchal power structures in personal laws. The case's absence of any strong gender-rights-based argument at the forefront slightly diluted the progressive potential of this ruling. Besides, the judgment failed to connect the matter into broader reforms such as the Uniform Civil Code, a debate worth noting and advancing. 

Alternatively, the Court could have declared the practice unconstitutional and directed the framing of codified Muslim family law based both on constitutional values and Islamic principles. This would avoid the route of penal provision and leave space for consultation with and reform by the community. The judgment could further explicitly prescribe awareness drives and grievance redressal mechanisms for women, supported by states, victimized by such practices.

Importantly, the decision has begun to bring the necessary cultural and social change. It raised the matters of legal awareness among Muslim women, kicked off public debate around personal law reform, and forced the state to respond through legislation. But real empowerment comes through legal literacy, economic independence, and ground education. It is one thing to announce a decision at a national level; it is another entirely to have programs that ensure those, particularly in rural and impoverished areas, know their rights and have the backing system to enforce them. Shayara Bano is, simply put, a landmark judgment that bravely puts constitutional values over religion's orthodoxy. As with every argument, it has some drawbacks, but these form part of the foundational stride along the onward path toward gender justice, legal equality, and progressive reform in personal law regimes in India.

Finally, the ruling by the Shayara Bano is unprecedented in that it says even personal laws derived from customs and religion must conform to the constitutional mandate of equality, dignity, and non-discrimination. This ruling thus strengthens the very annulment of the practice of triple talaq, which was arbitrary and grossly violative of any norms of real Islamic principles. In a comparative study, the judgment lacked certain covenants, especially limited to other discriminating practices like nikah halala, polygyny, and fragmented reasoning, illustrating how complex it would be to transform deeply rooted personal laws. And indeed, while empowering Muslim women by recognizing their rights and stimulating necessary legal and legislative reforms, it also generates a wave of broader change in society and culture to remain positive against patriarchal practices, thus rendering transformative powers. This is one of the greatest strides on the road toward gender justice and progressive reform within India's personal law regime, setting strict judicial precedent to ensure that tradition does not override constitutional rights.