Shayara Bano v/s Union Of India

Background of the Case
The Petitioner and the petitioner-husband were married on 11 April 2001 under Sharia (Islamic law). They have two children, a son and a daughter. On October 10, 2015, Rizwan Ahmad divorced his wife through divorce, third divorce or permanent divorce (in the presence of two witnesses he said: "I gave a talaq, talaq, talaq").

What is divorce?
Divorce in its original meaning is annulment or nullification, but in Islamic law it means permanent release or final release from the marriage contract. This is the general name for all types of divorce. This is especially true for rejection by the husband or for the substitute.

The petitioner filed a writ petition in the Supreme Court (SC) in February 2016 challenging the validity of the Talaq Bidat (Triple Talaq ).

The petitioner argued that this type of talaq (divorce) violated constitutional rights and also argued that these laws were not protected under principles 25(1), 26(b) and 29 of the constitution.

Contention Of Petitioner
Amit Chadha submitted for the petitioner that the triad was never recognized in the Sharia Practice Act 1937 , neither did the Prophet. Encourage this type of separation. This divorce has only come about as a tradition and a false interpretation, without the approval of the government. He also cited several cases that raised questions about this type of divorce. He referred to the case of Shamim Ara v. State of Uttar Pradesh (2002) in which the court laid down guidelines for equitable divorce. He pleaded with the court to abolish this form of divorce on the grounds of violation of Articles 14 and 15 and if it is abolished, the Muslim Divorce Act 1939 will also apply to the entire society regardless of gender.

Contention Of The Respondent
Kapil Sibal representing the respondents states that Shariah Ko this is the rule of thumb. does not codify the personal laws of Muslims, but lays down rules for deciding cases of custom or different usage. He also said that marriage in Muslim law is a private contract and therefore cannot be questioned by any law. He pointed to the definition of law in the constitution, which is not a personal law in any way.

Judgment:

1. A majority of 3:2 in this case orders that the case be heard and that the triple jeopardy be dismissed and sent instructions for cancellation of Section 2 in Sharia Law 1937.
2. Talaq-e-bidat or triple divorce is not a valid Islamic practice; the practice has existed since ancient times and is still practiced in society. Since triple divorce is not such a practice, it is not applicable under Article 25(1) of the Indian Constitution.
3. By emphasizing the Qur'an, it was stated that the opinion of the individual is contrary to the standards of the Qur'an and the Sharia, and cannot be justified by the action of the majority of people. Article 25 also states that it cannot be terminated if it is not necessary for a religious purpose, but it can be terminated if it is not a religious need.
4. Marriage contracts that are annulled without the wife's consent are an expression of inequality between the sexes, and without an attempt to compromise, are a clear violation of Article 14 of the Constitution. When Sharia law was passed in 1937 before the Constitution of India, it was considered a pre-constitutional law (Article 13(1)). According to pre-constitutional law, if any other law violates fundamental rights, it should be declared void due to the inconsistency involved by the doctrine of eclipse and severability. The Shariat Act, 1937 is not applicable here because it violates Article 14, which is a fundamental right of a person, and it gives more unfair privileges to males rather than females.

Conclusion
In the present case, After scrutinizing the case from various angles with respect to personal and constitutional law, the majority of the bench 3:2 delivered a judgement for the abolition of the triple talaq practice un-Islamic and unconstitutional in India, the judgement was very clear that anything done without the consent of anybody can be struck down because any practice which is overriding the fundamental rights guaranteed under tthe constitution cannot be validated.

Here the practice of pronouncing talaq by men on his spouse is inconsistent with the provisions guaranteed under the law. This section is not only for a particular set of people. it attracts a large community which follows their religion faithfully. This method cannot be applied only to men. This decision paves the way for the protection of the fundamental rights of Muslim women.

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Written By:

• Chandravadhani R
• Shameksha Raghavan