Talaq-e-biddat held to be unconstitutional
- shrey singh
- Jan 6, 2020
- 3 min read
Shayara Bano v. Union of India
Writ Petition (C) No. 118 of 2016 decided on August 22, 2017
5 Judges Bench
Majority: Uday Umesh Lalit, Rohinton Fali Nariman and Kurian Joseph(concurring judgment), JJ.
Minority: Jagdish Singh Khehar and S. Abdul Nazeer,JJ
Facts
The petitioner-Shayara Bano has approached Supreme Court for nullifying the divorce pronounced by her husband 10.10.2015, wherein he affirmed in the presence of witnesses saying that I gave “‘talak, talak, talak’, hence like this I divorce from you from my wife”. The petitioner has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio.
Question of law
Whether the triple talaq is constitutionally valid?
Argument Advanced
Petitioner
Respondent
It was argued on behalf of Petitioner that the practice of ‘talaq-e-biddat permitted a male spouse an unqualified right, to severe the matrimonial tie 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. 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.
Further more, it was submitted, the Constitution postulates through Article 15, a clear restraint on discrimination, on the ground of sex and hence violative of Art 15.
It was also submitted, that ‘talaq-e-biddat violated the aforesaid fundamental right, which postulates equality between men and women.
It was also submitted, that the rights of the female partner in a matrimonial alliance amongst Muslims, had resulted in severe gender discrimination, which amounted to violating their human rights under Article 21 of the Constitution.
Lastly, It was submitted, that triple talaq is not recognized by many schools of Islam. According to learned counsel, all concerned acknowledge, that ‘talaq-e-biddat’ has all along been treated irregular, patriarchal and even sinful. It was pointed out, that it is accepted by all schools – even of Sunni Muslims, that ‘talaq-e-biddat’ is “bad in theology but good in law”.
It was submitted by the Respondent that a challenge to ‘personal law’ could not be raised on the anvil of Articles 14, 15 and 21 of the Constitution because to affect a change in ‘personal law’, it was imperative to embark on legislation and since the muslim personal law is not codified and is governed by Quran, Hadith etc which are neither “law” nor “law in force” therefore challenge under Part III of Constitution can be raised.
Insofar as the practice of ‘talaq-e-biddat’ is concerned, it was submitted, that it has been practised amongst Muslims for the last 1400 years. It was submitted, that the same is an accepted mode of divorce amongst Muslims. It was therefore urged, that it was not for this Court to decide, whether the aforesaid practice was just and equitable.
Held
“Triple Talaq is an anachronism in today’s day and age and, constitutionally speaking, is anathema.”
Per Majority
Per Minority
It was held that Talaq-e-biddat is recognised under Muslim Personal Law (Shariat) Application Act, 1937 and is violative of the fundamental right contained under Article 14 of the Constitution of India.
‘Personal law’, being a matter of religious faith, and not being State action, there is no question of its being violative of the provisions of the Constitution of India, more particularly, the provisions relied upon by the petitioners, to assail the practice of ‘talaq-e-biddat’, namely, Articles 14, 15 and 21 of the Constitution.
The judge exercising the power under Art 142 said that till the time a law comes into force, the Muslim husbands should be injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction will be operative for a period of six months and if the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – 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.
Comments