The Supreme Court judgement in the case of Shayara Bano v. Union of India
of the important judgements in many aspects. It is one of the examples where
judicial activism is needed, where the people deprived of justice sought faith
in the judiciary, a perfect example of justified breach of the separation of
power. Among all these, perfect example of justice for women. This is the
judgment to bring the reform which was needed to be brought through the
political and social leaders and the legislation.
Triple Talaq, which is referred to as Talaq-e-biddat, was very harassing for the
women in the Muslim religion. Although the religion itself call it very sinful
this practice still founds ground in the Hanafi School of the Sunni sect. It
exists one thing: bad in theology but good in law. But now in law also it is
disapproved by the Muslim Women (Protection of Rights of Marriage) Act, 2019
which was brought by the Parliament after this judgement.
Facts Of The Case:
The facts of the case are simple. Shayara Bano was divorced by her husband
through the mode of triple Talaq (Talaq-e-biddat). This petition was filed under
Article 32 of the Indian Constitution. So, to check the facts of the case is not
under this jurisdiction. The husband, Rizwan Ahmed divorced Shayara Bano by
saying I give talaq, I give talaq, I give talaq. The question before the
Court was the constitutionality of the triple Talaq.
In these types of cases, the pertinent case proves only as a catalyst. Muslim
women have started the protest against triple talaq and the intellectual people
were also calling to ban this practice. Many other issues were to be raised in
this case such as halal but the court keep itself to this issue.
Along with the social movements, the different high courts also have taken
different stances for and against triple talaq.
Issues Before The Court:
After hearing the contentions from both of the parties, petitioner and
respondent, the Court formulated nine issues and accordingly judges delivered
their judgments. Following are the issues:
Court And Bench:
- Does the judgement of the Privy Council in the Rashid Ahmad case,
upholding 'talaq-e-biddat', require a relook
- Has 'talaq-e-biddat', which is concededly sinful, sanction of law?
- Is the practice of 'talaq-e-biddat', approved/disapproved by hadiths?
- Is the practice of 'talaq-e-biddat', a matter of faith for Muslims? If
yes, whether it is a constituent of their 'personal law'?
- Did the Muslim Personal Law (Shariat) Application Act, 1937 confer
statutory status to the subjects regulated by the said legislation?
- Does 'talaq-e-biddat', violate the parameters expressed in Article 25 of
- Constitution morality and 'talaq-e-biddat'.
- Reforms to 'personal law' in India.
- Impact of international conventions and declarations on 'talaq-e-biddat'.
This case was heard by the constitutional bench of the Supreme Court as it
involved the question of law which was to be determined by the court. The judges
in the case were the then Chief Justice J.S. Khehar, Justices S.A. Nazeer,
Kurian Joseph, R.F. Nariman and U.U. Lalit. CJ Khehar and Justice Nazeer gave
the dissenting judgment. Thus, the ratio in the case was 3:2. However, the line
of reasoning in delivering the judgment was not the same.
Talaq In Islam:
The sources of Islamic law are Quran, Hadiths, Quias and Ijmas. Quran does not
talk about any kind of talaq. The hadiths have mentioned the talaq. The
different schools of the Sunni Sect recognize different modes of talaq. In this,
only the Hanafi school of Sunni Sect recognizes the triple talaq "talaq-e-biddat".
In Islam, talaq refers to the divorce given by the husband, when the wife gives
divorce it is called khula and when the divorce is sought with the consent of
both then it is called mubarrat.
There are three types of talaq: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-biddat. The first is considered the most reasonable and the second is considered
reasonable. The third one which is talaq-e-biddat is considered as bad in
theology but good in law
. In Talaq-e-Ahsan, there is one pronouncement only
after which the wife has to observe the 'iddat' period of three months or three
lunar months (in case the wife is not menstruating).
The 'iddat' period is
observed to determine the male parent of the child. If the husband and wife
start co-habiting then the talaq is revoked. If not, then the talaq becomes
irrevocable. To live with a husband again, there is a need for a new nikah and
on the third such pronouncement then the wife has to marry another person to
live again with her husband.
In Talaq-e-Hasan, there are three pronouncements
one after the other by following the abstinence period of one month each time.
After the third such pronouncement, the wife has to follow the iddat period and
the rest is similar to the talaq-e-Ahsan. In Talaq-e-biddat, there are three
pronouncements in one sitting and thus it has the nature of irrevocable.
The Quran itself does not talk about the talaq but in hadiths and other
supplements of the Quran, everywhere the type of talaq which is talked about is
the talaq of the nature of revocable, which has the chances of reconciliation.
The hasty and no reconciliations are disapproved.
Legislations And Judicial Pronouncements:
In India, the first time Shariat Act, 1937 was enacted to enforce the personal
laws of the Muslims. This Act was enacted to remove the application of the
customs and usage by the courts. However, in the personal laws of Hanafi school,
there is no provision of divorce by the wife.
In this case, the laws of other
schools are applied and it has been recognized by the Ulemas. The Dissolution of
Marriages Act, 1939 was enacted after repealing Section 5 of the Shariat Act,
1937. This Act has provisions regarding divorce by women. However, this Act is
irrelevant in this case as this case is related to the divorce by the husband.
There is no legislation on this matter. But, if seen in the Islamic world, this
practice has been banned. Pakistan, Bangladesh are also among these countries.
The court also took note of these legislations.
The judicial pronouncements by several High Courts are against the talaq-e-biddat
. The Delhi High Court in the case of Masroor Ahmed v. State
(NCT of Delhi) 2008 (103) DRJ 137 have proclaimed that if the proclamation of
'talaq-e-biddat' is done in one sitting only then it will amount to only one
time whether it is called for how many times. The Gauhati High Court in the case
Rukia Khatun v. Abdul Khalique Laskar
(1981) 1 Gau. L.R. 375 set out
some essentials for the valid talaq. In all, the judgments in the high courts
have been pronounced based on "bad in theology but good in law". The High Courts
have called upon the legislatures to formulate the legislation on this issue.
Chief Justice Khehar wrote on his and justice Nazeer behalf. His judgment on the
above issue was:
The high courts have taken the opposite view from the judgment in
the Rashid Ahmad case. The Quran, hadiths, ijma and qiyas were referred to give
the judgments in the above case. This judgment also came before the enactment of
the Shariat Act, 1937 and so it needed a relook in this matter.
CJ in this issue noted that the court cannot declare anything
unlawful merely on the basis that it is considered sinful in theology. The
petitioner contention was that 'talaq-e-biddat' is considered sinful and the
practices which are considered sinful cannot be part of the Shariat, in this
case. Thus, it should be declared unlawful. But, the CJ noted that all the
parties present in this case accepted that this practice was considered as valid
in the law and now it cannot be held unlawful merely based on theology.
The CJ refrained from declaring whether 'talaq-e-biddat' is
approved or disapproved by the hadiths. The CJ noticed that it is the work of
the Imam to determine the validity. Furthermore, the petitioner relied on
different sets of hadiths for their claims and the respondent, AIMPLB, relied on
the different sets of hadiths. So, the court found not to interfere in this
In this issue also, the CJ noted that 'talaq-e-biddat' is part of
the personal laws of Muslims. The CJ noted that this practice is prevalent from
time immemorial and also was widely prevalent. The legislation in the different
countries proves it. This type of talaq is practised by the Hanafi School of the
Sunni sect. In India, more than 90% of Muslims belong to this school.
This issue is one of the most important issues of the case. The CJ
stated that the Shariat Act, 1937 did not give legislative stature to the
personal laws. He relied on the contentions of the respondent. The respondent
contended that the object of this act was not to convert the personal law
stature into statutory stature. It is well established through the debates of
the legislative assembly where the members (Abdul Qaiyum and HM Abdullah) stated
that the purpose of this act is only to nullify the use of customs and usages
over the personal law. This is also established through the non-obstante clause
in Section 2 of the Act. The contention of the petitioner to refer to the 1937
Act in the meaning "laws in force" in Article 13 (1) of the Constitution.
The CJ took note of the judgment of the Bombay High Court in the
case of Narasu Appa Mali AIR 1952 Bom 84. In this, the court declared that the
personal laws are not under the ambit of "laws in force" mentioned in Article
13(2) of the Constitution.
The court relied on several reasons:
- In the Government of India Act, 1915 there is separately mentioned about
the personal law and customs. This was in the note of the Constituent
Assembly and Article 13 only customs and usages are mentioned and personal
laws are not mentioned.
- In Article 372, it is mentioned that President is given the power to
make adaptions and modifications to the "laws in force". Therefore, it cannot be
contended that the Constituent Assembly intended to give the power to the
President to make changes in the Personal laws.
The CJ also mentioned that talaq-e-biddat
does not violate any of the
exceptions mentioned in Article 25 (2) of the Constitution which are public
order, health and morality. The other mentioned exceptions is that violative of
Part 3 of the Constitution. The CJ held that this protection is against the
actions of the state and thus the petitioner's contention that 'talaq-e-bidaat'
is violative of the Articles 14, 15, and 21 of the Constitution cannot be
The CJ held that the personal laws cannot be checked based on
Constitutional morality because the Constitution Assembly has excluded the
personal laws from the ambit of Part 3 of the Constitution.
The CJ held that the petitioner contended that there have been
reforms in other religions. The court was informed about Sati, Devdasi and
polygamy. The CJ held that these reforms did not take place through the judicial
process but the legislative processes and we welcome the legislation on this
The CJ held that international conventions do not have any effect
on the application of Personal laws because they have the protection of Article
25 of the Constitution.
By concluding the above, the CJ injuncted Muslim men from issuing the
'talaq-e-biddat' for six months and if any legislation process takes place on
this issue then this injunction will be continued for the time of that
legislative process. In case, no legislative action takes place then this
injunction will be ended.
The above judgment was delivered by CJ Khehar and Justice Nazeer. Justice Kurian
Joseph, RF Nariman and UU Lalit gave the concurring judgment to hold the
'talaq-e-biddat' as unconstitutional.
Justice Kurian Joseph:
Justice Kurian disagreed with the view of the CJ and justice Nazeer. Justice
Kurian mentioned that it is no more res Integra after the judgment of the Kerala
High Court in the case of Nazeer @ Oyoor Nazeer v. Shemeema
2017 (1) KLT 300.
According to Article 141 of the Constitution, the Shamim Ara is the present law
in this particular issue. So, as for now, what is bad in theology is also bad in
law. The Court in that judgment has invalidated talaq-e-biddat
Justice Kurian agreed with the view of the CJ that the Shariat Act, 1937 is not
a piece of legislation and disagreed with the view of justice Nariman. But,
justice Kurian mentioned that after this Act what is contrary to Sharia is not
lawful. 'Talaq-e-biddat' is against the verses of Quran, hadith, ijma and qiyas,
and thus cannot be valid according to Sharia. Thus, 'talaq-e-biddat' lacks the
validity of the law.
One more statement was made by him that any practice cannot be determined to be
the part of religion merely on the basis that it was followed since the time
immemorial and widely followed. If the act is expressly declared to be
impermissible then it cannot be part of that religion. Thus, 'talaq-e-biddat' do
not hold the protection of Article 25 of the Constitution.
Justice R.F. Nariman:
Justice Nariman wrote his judgment in agreement with justice Lalit. Justice
Nariman stated that the Shariat Act, 1937 is a piece of legislation and comes
under the 'laws in force. He stated that a narrow interpretation of the Statute
cannot be done based on the non-obstante clause. He referred to the judgment of
this court in the case of Aswini Kumar Ghosh v. Arabinda Bose where the court
Turning now to the non-obstante Clause in Section 2 of the new Act, which
appears to have furnished the whole basis for the reasoning of the Court below
-- and the argument before us closely followed that reasoning -- we find the
learned Judges begin by inquiring what are the provisions which that Clause
seeks to supersede and then place upon the enacting Clause such construction as
would make the right conferred by it co-extensive with the disability imposed by
the superseded provisions.
"The meaning of the Section will become clearer",
they observe, "if we examine a little more closely what the Section supersedes
or repeals..... The disability which the Section removes and the right which it
confers are co-extensive." This is not, in our judgment, a correct approach to
the construction of Section 2. It should first be ascertained what the enacting
part of the Section provides on a fair construction of the words used according
to their natural and ordinary meaning, and the non-obstante Clause is to be
understood as operating to set aside as no longer valid anything contained in
relevant existing laws which is inconsistent with the new enactment.
He holds the 'talaq-e-biddat' unconstitutional as it is against Article 14 of
the constitution because it is an arbitrary practice. He noted We have already
seen that one of the tests for challenging the constitutionality of subordinate
legislation is that subordinate legislation should not be manifestly arbitrary.
Also, it is settled law that subordinate legislation can be challenged on any of
the grounds available for the challenge against plenary legislation.
In conclusion, the judgment pronounced by this Court in this particular judgment
was an example of judicial activism. If seen accordingly, to stop the practice
of 'talaq-e-biddat' what is required is legislation. The reforms in the
religions have come through social movements and legislation. The dissenting
view of the Court called for the legislation to be enacted on this practice. But
if see the previous such judgment given by the court in the case of Shaha Bano
Begum was invalidated by the legislation. This particularly shows the lack of
interest and social support for the reforms in the Personal laws.
If we compare the judiciary of the developed countries, like the USA and the
developing countries like India then one major difference is there and that is
of the activism. The judiciary in the USA is not that active to interfere in the
works of the legislative branch of the state but in India, the judiciary
actively interferes in the legislative works. It is justified based on the
social condition prevailing in society. The legislative branch lacks the social
support to bring this reform and the judiciary should come in support of the
exploited class of the people as in this case, women.