Shayara Bano v/s Union of India, 2017.
This article aims to provide a comprehensive overview of the Supreme Court's decision on triple talaq, including the legal reasoning, societal impact, and the road ahead.

The safeguarding of Muslim women's rights, an issue that should have persisted beyond India's independence, has unfortunately remained at a standstill. This stagnation has led to immeasurable hardship and significant challenges for these women.

Among the various sources of their distress, the practice of 'Talaq-e-biddat' stands out as a particularly contentious and controversial issue, eliciting strong reactions from Muslim women.This form of divorce, initiated by the husband, is finalized when he utters the word 'talaq' three times in succession. It's worth noting that talaq serves as a method of marital dissolution, but one that is exclusively available to the male spouse.

The lack of progress in protecting the rights of Muslim women has resulted in a situation where practices like 'Talaq-e-biddat' continue to cause significant distress. This issue has become a focal point of debate and activism, with many Muslim women voicing their concerns and calling for change. The instantaneous nature of this form of divorce, where a marriage can be dissolved simply through the triple utterance of 'talaq', has been a source of particular anguish and controversy.

Divorce, in my estimation, should not be a private matter resolved solely between spouses without judicial oversight. Granting husbands exclusive, arbitrary rights to dissolve a marriage perpetuates gender inequality, which runs counter to the principles of an egalitarian society. When marital discord arises, arbitration should be the first recourse.

The practice of talaq-e-biddat allows husbands to abruptly terminate marriages at will, without justification. Many women displayed distress that their husbands have uttered talaq thrice a time in WhatsApp through voice message which eventually puts an end to the matrimonial relationship.

This not only contravenes Article 14 by denying wives equal participation in the process but also raises broader concerns about gender equality and the dignity of married life. Moreover, it robs couples of the opportunity to reconsider, rectify mistakes, and potentially salvage their relationship.

It's worth noting that numerous countries with Islamic legal traditions have outlawed such practices through legislation, demonstrating that instant divorce is not an inviolable tenet of Muslim faith. For instance, in Pakistan, husbands must obtain approval from an arbitration council to finalize a divorce. Many outdated practices have been phased out to promote equality and social cohesion.

It's crucial to recognize that divorce proceedings typically involve a time lag and specific timeline. This built-in delay serves a vital purpose: In Islam it is referred to as the Iddat period which provides a platform for reconciliation attempts. By allowing time for reflection and mediation, couples have a chance to address their issues and potentially avoid the dissolution of their marriage.

Facts:
In a landmark case of Shayara Bano Vs Union of India, that shook the foundations of Islamic personal law in India, Shayara Bano found herself at the centre of a legal storm. Her story began on April 11, 2001, when she tied the knot with Rizwan Ahmed in a traditional nikah ceremony. On October 10, Shayara's husband uttered those three fateful words: "talaq, talaq, talaq."

With this triple pronouncement, their marriage was instantly dissolved through a practice known as Talaq-e-biddat, or instant triple talaq.Refusing to accept this abrupt end to her marriage, She approached the Supreme Court, questioning the validity of this age-old practice.

Issues:

• Does 'talaq-e-bidat' violate the parameters expressed in Article 25 of the Constitution?
• Whether it infringes the fundamental rights enshrined under the Constitution of India?

Contentions of the Petitioner:

• Impulsive and Irretrievable: Critics argued that this form of divorce leaves no room for reconciliation. It's a decision often made in haste, with no opportunity to reconsider or mend relationships.
• Unilateral and Unfair: The practice grants unparalleled power to husbands, allowing them to end marriages without providing any justification. This one-sided authority raised serious questions about gender equality.
• Constitutional Conundrum: The practice found itself at odds with several constitutional provisions:
  • Article 14: The right to equality before the law
  • Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth
  • Article 21: Protection of life and personal liberty
• Non recognition: Muslim personal law does not endorse Talaq-e-biddat, commonly known as triple talaq. Consequently, there's a strong argument for the court to declare this practice unconstitutional. The Quran does not sanction instantaneous divorce. Moreover, no schools of Islamic thought recommend or approve of this practice. Sunni schools of Islam, in particular, describe it as a "sinful form of divorce."
• Lacking judicial intervention: In contrast to other Indian communities where divorce is obtainable only through judicial forums, talaq shouldn't have the power to alter one's legal status at the husband's discretion.
• Violation of international conventions: This practice blatantly contravenes the Universal Declaration of Human Rights adopted by the United Nations General Assembly, which explicitly prohibits discrimination based on factors such as sex or religion.
• Outlawed practice in theocratic states: It's noteworthy that numerous countries have legislatively abolished the practice of triple talaq.

Rebuttal:

• The practice in question is a fundamental aspect of religion. If it is deemed a core belief, it should remain free from judicial interference. Consequently, it does not influence the fundamental rights guaranteed by the Constitution.
• Religious practices hold significant importance in the lives of individuals. Issues related to dower, gifts, maintenance, and custody are all influenced by the beliefs of those adhering to their faith.
• Personal laws can be challenged solely on the ground that they conflict with any provisions outlined in Part III of the Constitution.
• The term "custom and usage" as referenced in Article 13 does not encompass the faith of religious groups as expressed in their personal laws.
• Section 112 of the Government of India Act, 1915, clearly differentiates between personal laws and customs that possess the force of law.
• Interference by the judiciary in the personal laws of Muslims is not an appropriate approach.

Judgement:
The Supreme Court's five-judge bench reached a decision with a majority, declaring the practice of triple talaq unconstitutional due to its arbitrary nature and contradiction to the fundamental principles of the Quran. Chief justice J.S. Khehar and Justice Abdul Nazeer issued a dissenting opinion, asserting that the practice complies with the provisions of Article 25 and is a matter of personal law for Sunni Muslims of the Hanafi School.

Impacts:
Subsequent to the former ruling of the Supreme Court, the legislative body enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, outlawing the immediate pronouncement of triple talaq and imposing a penalty of three years incarceration on the husband under section 4 of the act. Section 3 of the act distinctively emphasised the interdiction of triple talaq declarations by the husband. Under section 7 the practice of pronouncing triple talaq was considered as cognizable, thereby precluding the husband from being granted bail unless the court is entirely convinced of the situation.

Conclusion:
It is crucial to shift our focus from the practice that historically granted the husband exclusive authority to determine the dissolution of marriage. This authority should not be misconstrued as a privilege accorded to the husband; rather, it serves as a pernicious and inimical tool that can shatter the bond between the couples, rendering the decision irreversible, and leaving no resort for conciliation.

Such an approach not only confronts the principle of equality but also undermines the fundamental essence of marital relationship. Therefore, this unilateral decision should reside with the court, which is equipped to consider both perspectives before issuing a decree of divorce.

The rudimentary target of divorce is to safeguard the well-being of the individuals involved when there is no possibility of rekindling their relationship. In situations where couples are uncertain about their separation and are experiencing emotional distress, it is impetus that the final decision does not rest solely with one party.

Written By: K.P. Rampragadesh, Advocate, Supreme Court of India.
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