The Shayara Bano Vs Union of India[1] one of the most important judgments of the Supreme Court which has been decided by the Constitutional bench consisting of 5 judges. After the judgment of this case, it led to a complete ban on Talak-ul-biddat or practice of instant triple Talak, which had been followed by the Muslim man for taking divorce from his wife. Triple Talak means pronouncing the word Talak three times in a single sitting. It can be communicated in any form i.e., oral, written or by any electronic way.

Can we imagine a Muslim man pronouncing a single word Talak three times or he communicated to his wife by way of notice or by sending a text message or on WhatsApp and the whole process of divorce is complete. Due to unilateral and arbitrary forms of divorce, the consent of the Muslim wife is immaterial. That is why such practice was challenged before the Supreme Court, as it is violating various fundamental rights of Muslim women.

Forms of Talak

There are two modes or forms of Talak which are recognized in Islamic law, Talak-us-Sunnat and Talak-ul-Biddat.

Talak-us-Sunnat, which means Talak according to the Rules or precedents which were laid down in the sunnah or traditions of the Prophet Muhammad. It is a regular or revocable form of talaq. It means Muslim husband has the option to revoke the talaq, before it becomes irrevocable.

Kinds or Forms of Talak-us-Sunnat:

1. Talak ahasan:
   It consists of a single pronouncement of the word Talak, which is to be made during Tuhr (days or purity where wife is not menstruating). It is followed by abstinence from sexual intercourse during the period of iddat which is 3 lunar months. After the completion of the third lunar month, the Talak becomes irrevocable. It is the most approved form of Talak.
    
2. Talak hasan:
   It consists of three pronouncement of the word Talak, which is to be made during each of the three successive periods of purity (Tuhr). Abstinence from sexual intercourse until the third pronouncement. After the third pronouncement of the word Talak, it became irrevocable.

Talak-ul-Biddat is a new and irregular form of divorce. It is heretical divorce which is good in law, but bad in theology. It consists of three pronouncements of the word Talak in immediate succession within a single Tuhr. A single pronouncement of Talak made during a Tuhr clearly indicating an intention irrevocably to dissolve the marriage. It became irrevocable at the instant of the pronouncement of Talak by the Muslim husband. Practice of instant triple Talak is recognized in Hanafi school of Sunni.

Facts of the Case
Shayara Bano, a Muslim lady, who had contracted a marriage with Rizwan Ahmed in 2002. In 2015, her husband pronounced triple Talak in the presence of two witnesses, without stating any reason for the same. The Muslim wife decided to challenge the same. So, she filed a writ petition under Article 32[2] before the Supreme Court of India.

She challenged the constitutional validity of three practices under Muslim law which were � Talak-ul-Biddat, polygamy Nikah Halala, as these practices violated the fundamental rights of women i.e., Article 14, 15, 21, 25 of the Constitution of India. She prayed before the court that Talak-ul-biddat pronounced by her husband to be declared as void ab initio.

The Supreme Court accepted the writ petition of Sharaya Bano and formed a 5 judge Constitutional bench in 2017 under Article 145(3) of the Constitution of India.

Coram: Chief Justice of India J.S. Khehar, Justice U.U. Lalit, Justice Abdul Nazeer, Justice Kurian Joseph, and Justice Rohinton Fali Nariman,

Issues Raised:

1. Whether the practice of Talak-ul-biddat an essential practice of Islam?
2. Whether the practice of Triple Talak violates fundamental rights i.e., Articles 14, 15, 21, and 25 of the Indian constitution?

Crux of Arguments from Petitioner's side:

1.  Petitioner argues that the Muslim Personal Law (Shariat) Application Act, 1937 does not recognized triple Talak has a form of divorce. Also, this form of divorce never recognized by the Prophet Muhammad, as it is not a part of Talak-us-Sunnat.
2. This talaq emerged by way of custom and a wrong interpretation. It does not have Quranic sanctions.
3. This form of Talak is violating the guidelines for valid Talak given by the Supreme Court in Shamim Ara case.
4. This form of Talak violates Article 14 due to arbitrary power of instant divorce given to the Muslim Husband where he can exercise even without any reasonable cause.
5. Practice of triple Talak violated Article 15 on the ground of gender discrimination. This practice is exercised unilaterally by the husband and the consent of the wife is wholly immaterial. Such power of giving Talak has not been given to the Muslim wife.

Hence, petitioners urged before the court to set aside the practice of triple Talak.

Crux of Arguments from Respondent's side:

1. Respondent's argue that personal laws are excluded from the definition of law under Article 13 of the constitution.
2. The Quran is silent on the practice of triple talaq, so there is nothing in it which prohibits or forbids triple talak.
3. There is no question of constitutional validity of triple talaq arise, as this is between two private parties and no state action involved, as Muslim marriage is a civil contract.
4. The Hanafi school (which allows the practice of instant triple talak) is a religious denomination that is protected under Article 26 of the Constitution, as every denomination has the right to practice their religion.

Judgment of the Court

• The Supreme Court's five judge bench gave its judgment by a 3:2 majority and declared the practice of triple Talak unlawful and unconstitutional. Hence, the court set aside the practice.
• Further the court directed the Parliament to pass appropriate legislation for prohibiting the practice of triple Talak.
• Concurring opinion: Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice U.U. Lalit. Dissenting opinion: Chief Justice of India J.S. Khehar and Justice Abdul Nazeer.
   

Majority Opinion
Justice Korian Joseph stated that the practice of instant triple Talak is against the basic tenets of the Holy Quran and consequently, it violates Shariat law. Also, triple Talak lacks legal sanctity. (Shamim Ara case).

He stated that talaq is governed by Shariat Act[3], but the specific grounds, forms, and procedure for talaq have not been codified in the Act. So, this Act is not the legislation for regulating triple Talak. Hence, he quotes,

"What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well."

He does not agree that triple talaq was an integral or essential part of the religious practice, Merely, because a practice had continued for a long period of time, that by itself could not make it valid.

Since, practice of Instant Triple Talak is against both theologies as well as law and just because it is followed by many people, it cannot be validated. He agreed on the point that the practice of instant triple Talak can be challenged on the ground of arbitrariness.

According to Justices Rohinton Nariman and Justice U.U. Lalit, held that the practice of instant triple Talak is regulated by the Shariat Act. The Act recognizes and enforces triple Talak within the meaning of the expression "laws in force" under Article 13(1) of the Constitution of India. They declared that the practice of instant triple Talak must be struck down as void to the extent on the ground of manifestly arbitrary.

Minority Opinion
Chief Justice J.S. Khehar and Justice Abdul Nazeer held that the practice of instant triple Talak is an essential religious practice in Islam. As it is followed by many people of Muslim population. This practice has the sanction and approval of the religious denomination which practiced it. So, it is declared as constitutional and essential religious practice and gets the protection cover under Article 25 of the constitution.

They further held that the personal law of Muslim is not enacted by the state. So, it is not subjected to fundamental rights. Only the laws that are enacted by the state, can be challenged on the ground that it violates fundamental rights. Talak-ul-biddat is a practice amongst Sunni Muslims of the Hanafi school and it comes under the ambit of Muslim personal law. Also, articles 14, 15 and 21 could be invoked only against the State.

Personal laws are not "law" for the purpose of Article 13, State of Bombay v. Narasu Appa Mali[4], followed in Ahmedabad Women's Action Group v. Union of India[5].

At last, both the judges held that till the time legislation is not made in reference to Talak-ul-biddat, Muslim husbands are injuncted from pronouncement triple Talak. For the first instance, it is operative for a period of six months. If the legislative process did not commence, within the period of six months, then the injunction would continue, till the legislation is finally enacted. So, both judges agreed for a temporary stay on the practice of triple Talak.

Test of classification to Test of Arbitrariness as laid down under Article 14
Article 14[6] deals with Equality before Law. It states that, 'the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.' This right is available not only to citizens of India but also non-citizens including foreigners and even legal persons such as companies or a corporation.

Article 14 has two parts:
Equality before the law:
It is adopted from the British constitution. It is a negative concept. It prohibits unequal treatment. It implies no special benefits must be given in favour of any individual. The word "Law" used is Rule of Law by A.V. Dicey. It means no one is above law. All persons shall be treated the same in the eyes of law. Same laws are applicable for the same offense to everyone and all are tried in the same court. This part is generic in nature.

Srinivas Theatre Vs State of Tamil Nadu[7], Justice Reddy quotes, Equality before law is a dynamic concept having many facets. One of them is there shall not be no privileged person of class and name shall be above state law.

Equal Protection of Laws:
It is adopted from the American constitution. It is a positive concept. It demands equal treatment. It implies equal treatment given to a person under equal circumstances i.e., equal must be treated as equally and unequal should not be treated as equally. If equal treatment is given to the unequal then it would lead to inequality. This part is specific in nature.

Charanjit Lal Choudhury Vs Union of India[8], Supreme court held that equal protection means equal protection under equal circumstances and the state can make reasonable classification for the purpose of legislation.

Doctrine of Reasonable classification
A reasonable classification is necessary for the development and betterment of society or public welfare. So. Article 14 endorses reasonable classification.

Test of reasonable classification was developed in India in the State of Bombay Vs F.N. Balsara[9]. Article 14 does not give an absolute right; it is subjected to reasonable classification. It forbids class legislation. As per doctrine of reasonable classification, the classification must not be Arbitrary or evasive.

Following are the twin test of classification laid down in Budhan Choudhary Vs State of Bihar[10]:

1. Intelligible Differentia:
   There should be a rational classification or classification on sound basis, which distinguishes persons who are placed in a group from others who are left out of the group.
    
2. Rational Nexus:
   The classification must have a rational relation to the object achieved. It means there should be a close link or a rational relation between the classification made and the object which sought to be achieved by such classification.

In Ram Krishan Dalmia Vs S.R. Tendolkar[11], Supreme court reiterated that Article 14 prevents class legislation (creating class within a class) but it allows reasonable classification for the purpose of legislation.

In the 1970's, the Supreme Court realized that the old doctrine i.e., doctrine of classification has a negative or restrictive approach. Equality and inequality were very complex issues, which could not be solved only by assessing the rationality in classification.

Equality is a very dynamic concept. With change in time, the needs of society will also change. Meaning and scope of public welfare will also change. If a particular act fulfills or passes the test of reasonable classification, then does not mean that it passes the test of equality. So, the Court evolved a new doctrine i.e., doctrine of arbitrariness.

Doctrine of Arbitrariness
Under equal protection of law, when we make a reasonable classification and if there is an arbitrariness in such classification, then the court will strike down that provision having such arbitrariness. This is called the new doctrine of Arbitrariness.

The test of Arbitrariness was developed in India in E.P. Royappa Vs State of Tamil Nadu[12]. The court held that the main motive of Article 14 is to Strike out of Arbitrariness from the state action, in order to ensure fairness and quality. In this case, the court held at para 85, page 38,

"Equality is antithetic to arbitrariness. In fact, arbitrariness and equality are the sworn enemies; one belongs to the Rule of law in a republic while the other belongs to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14."

What was pointed out in this case, had been reiterated in the Maneka Gandhi Vs Union of India[13]. In this case, the court held that the procedure written in Article 21 has to fulfill the test of reasonableness in order to be in conformity with Article 14. The law must be just, fair, and reasonable and not arbitrary, fanciful, or oppressive. If the law is arbitrary then it would be a violation of Article 14.

The arbitrariness and unreasonableness have been used interchangeably. In Sharma Transport Vs Government of Andhra Pradesh[14], Supreme court held that at page 203-04, para 25,

"In order to be described as what is arbitrary, it has to be shown that it was not reasonable and manifestly arbitrary. The expression arbitrarily means, an unreasonable manner, act which is done capriciously or at pleasure, without any adequate determining principle, which is not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."

In Ajay Hasia Vs Khalid Mujib Sehravardhi[15] where the constitutional bench of the Supreme Court stated that legislation can be struck down on the ground that is arbitrary in nature under Article 14. In order to strike down a legislation on the grounds of arbitrary, it must be established that there is manifest arbitrariness in the legislation.

A legislation becomes manifestly arbitrary, when it is unfair, unreasonable, discriminatory in nature, not transparent, biased, with favoritism or nepotism.

Manifest arbitrariness means something must be done by the legislature capriciously, irrationally or without any adequate determining principle. Also, when something is done by the legislature which is excessive and disproportionate, such legislation would be manifestly arbitrary. Therefore, arbitrariness in the sense of manifest arbitrariness as pointed out would apply to negate legislation as well under Article 14.

Applying Test of Manifest Arbitrariness in Triple Talak
In Rukia Khatun v. Abdul Khalique Laskar[16], Shamim Ara Vs State of U.P[17], the Supreme court gave guidelines for valid Talak (para 13). According to the Holy Quran, the correct form of Talak is, which is pronounced for any reasonable cause and there is an option of reconciliation between husband and wife by two arbiters- one from husband side and the other is from the wife side. If their reconciliation fails then the Talak may be effected. Such a form of Talak is valid.

The Supreme Court found that the practice of Instant Triple Talak or Talak-ul- Biddat is an irrevocable form of divorce. It became irrevocable at the instant of the pronouncement of Talak by the Muslim husband. Since, the triple Talak became irrevocable with immediate effect it is obvious that there is no possibility of any attempt for reconciliation between husband and wife in order to save their marital tie.

The court held that the practice of triple Talak is manifestly arbitrary in the sense that the marital tie can be broken by a Muslim man whenever he desires, even without any reasonable cause, according to his whim and fancy. Also, Muslim men were enjoying arbitrary, unilateral power of instant divorce and the consent of the wife is wholly immaterial. The Quran expressly prohibits a Muslim man from taking divorce from his wife, as long as she remains faithful and obedient to him. No attempt is possible for reconciliation to save the marital tie.

The practice of instant triple Talak is against the guidelines given by the Supreme Court in Shamim Ara case. So, this practice has to be set aside.

Hence, this form of Talak is violating the fundamental right which is provided under Article 14 of the Constitution of India. Applying the test of arbitrariness under Article 14 practice of instant triple Talak was declared unconstitutional and set aside by the Court.

Conclusion
No doubt that the triple talaq decision has become a landmark judgment of the Supreme Court. Now, Muslim husband cannot desert his wife simply by breaking the marital ties according to his whim and fancies. This judgment definitely is great move for gender equality. It took many years for the Court to realize that the practice of instant triple talaq is bad for society.

We should now realize the need for a uniform civil court throughout the country. Triple talaq is just one such practice. There are a lot of such false practices prevailing in the society in the name of religion. It is time we must keep a close check on all those practices which are causing harm to society, and if so, then they should be banned.

End-Notes:

1. Shayara Bano Vs Union of India (2017) 9 SCC 1
2. Article 32 of the Constitution of India (Right to constitutional Remedy)
3. Muslim Personal Law (Shariat) Application Act, 1937
4. State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
5. Ahmedabad Women's Action Group v. Union of India (1997) 3 SCC 573
6. Constitution of India, 1950
7. Srinivas Theatre Vs State of Tamil Nadu (1992) SCR 2 164
8. Charanjit Lal Choudhury Vs Union of India AIR 1951 SC 41
9. State of Bombay Vs F.N. Balsara[1] 1951 SCR 682
10. Budhan Choudhary Vs State of Bihar AIR 1955 SC 191
11. Ram Krishan Dalmia Vs S.R. Tendolkar AIR 1958 SC 538
12. E.P. Royappa Vs State of Tamil Nadu (1974) 4 SCC 3
13. Maneka Gandhi Vs Union of India (1978) 1 SCC 248
14. Sharma Transport Vs Government of Andhra Pradesh (2002) 2 SCC 188
15. Ajay Hasia Vs Khalid Mujib Sehravardhi (1981) 1 SCC 722
16. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 Gau. LR 375
17. Shamim Ara Vs State of U.P (2002) 7 SCC 518

Award Winning Article Is Written By: Mr.Milan Asati

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