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Judgment Analysis: Shayara Bano v/s UOI

The Supreme Court judgement in the case of Shayara Bano v. Union of India is one 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:
  1. Does the judgement of the Privy Council in the Rashid Ahmad case, upholding 'talaq-e-biddat', require a relook
  2. Has 'talaq-e-biddat', which is concededly sinful, sanction of law?
  3. Is the practice of 'talaq-e-biddat', approved/disapproved by hadiths?
  4. Is the practice of 'talaq-e-biddat', a matter of faith for Muslims? If yes, whether it is a constituent of their 'personal law'?
  5. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation?
  6. Does 'talaq-e-biddat', violate the parameters expressed in Article 25 of the Constitution?
  7. Constitution morality and 'talaq-e-biddat'.
  8. Reforms to 'personal law' in India.
  9. Impact of international conventions and declarations on 'talaq-e-biddat'.

Court And Bench:
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 of Must.

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:

First Issue: 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.

Second Issue: 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.

Third Issue: 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 matter.

Fourth Issue: 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.

Fifth Issue: 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.

Sixth Issue: 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 accepted.

Seventh Issue: 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.

Eighth Issue: 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 particular issue.

Ninth Issue: 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 noted

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.

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