Name of the case: Shayara Bano and others v. Union of India and others
Shayara Bano case led to the ban of the Muslim practice of Triple Talaq. It is a
process of divorce under the "Sharia Law", where a Muslim man can instantly
divorce his wife by pronouncing the word "TALAQ" three times, without any state
intervention. The means of communication might be in any form i.e. written,
oral, or maybe electronic, which further enhanced a Muslim woman's
vulnerability during this sort of unilateral and arbitrary divorce. "Talaq" is
the Arabic word for Divorce.
There are three types of divorce under Sharia Law
from which only "talaq-e-biddat" is irrevocable. It is mainly prevalent among
India's Muslim communities that follow the Hanafi School of Law. Under this law,
Muslim women can't divorce husbands whereas husbands can. Women need to move a
court proceeding for divorce under the Muslim Personal Law (Shariat) Application
Act,1937. For 15 years, Shayara Bano had been married to Rizwan Ahmed.
through oral triple talaq (talaq -e biddat), Rizwan divorced her. A Writ
Petition was then filed by her in the Apex Court saying, "As a violation of
Articles 14,15,21 and 25 of the constitution, performance of the practices of - talaq-e-biddat,
polygamy, nikah-halala - should be held unconstitutional."
Petitioner: Shayara Bano
Respondent: Union of India; Ministry of Law and Justice; Ministry of Women and
Child Development; Ministry of Minority Affairs; National Commission for Women;
All India Muslim Personal Law Board; Rizwan Ahmad
Date of Judgment: 22nd August 2017
Judges: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice
Rohinton Fali Niraman, Justice Uday Lalit, Justice K.M. Joseph.
Citation: AIR 2017 9 SCC 1 (SC)
Facts of the Case:
Issues in the Case:
- Shayara Bano's marriage with Rizwan Ahmed was for 15 years. She was one of those
women who were survivors of domestic violence and dowry harassment.
- In 2016, she had been unilaterally divorced through instantaneous triple talaq.
- A writ petition was then filed by her before the Supreme Court.
- The petition stated a declaration that "the practices of Instant Triple Talaq,
polygamy and Nikah Halala in Muslim personal law were illegal, unconstitutional,
and in violation of several fundamental rights i.e., Articles 14 (equality
before law), 15 (non-discrimination), 21 (right to life with dignity) and 25
(right to freedom of conscience and religion) of the Indian Constitution."
- The Union of India as well as the women's rights organizations like the Bebaak
Collective and the Bhartiya Muslim Mahila Andolan (BMMA) also supported Ms.
Bano's plea that these practices should be held unconstitutional. They even
urged the court to declare that personal law was subject to the Fundamental
- The All-India Muslim Personal Law Board (AIMPLB) has argued that uncodified
Muslim personal law is not subject to constitutional judicial review and
that the Court did not have jurisdiction to entertain a constitutional challenge
to Muslim personal law as these are essential practices of the Islamic religion
and are protected under Article 25 of the Constitution.
- On 16th February 2017, Shayara Bano, the Union of India, various women's rights
bodies, and the All-India Muslim Personal Law Board (AIMPLB) were asked by the
court to introduce written submissions on the problems and issues of talaq-e- bidat, nikah-halala,
Arguments in the Case:
- Whether the practice of talaq-e-bidat, an essential practice of Islam?
- And whether this practice of Triple Talaq violates fundamental rights i.e.,
Articles 14,15,21, and 25 of the Indian constitution?
- Shayara Bano's advocate Mr. Amith Chadha began by arguing that triple talaq is
not a form of divorce recognized by The Muslim Personal Law (Shariat)
Application Act, 1937. He also pointed out that several High Courts and Supreme
Court have restricted this unilateral power of Muslim men to be able to divorce
Muslim women and even criticized the practice of triple talaq as it does not
have any Quranic sanction.
- He urged the court to "strike down the practice of triple talaq as it allows an
un-codified power to Muslim men to divorce, violating Articles 14 and 15 of the
- Next, Mr. Amith Chadha argued that "the practices challenged in this case are
not essential practices of Islam as it is evident from legislations in other
Islamic countries, that have prohibited such practices."
- Mr. Anand Grover, representing the Bharatiya Muslim Mahila Andolan (BMMA) also
clarified that "Talaq itself is of three types: talaq ahsan and talaq hasan,
both of which are approved and recognized by the Quran and Hadith while the
third type that is talaq-e-bidat, is neither recognized nor approved by the
Quran nor the Hadith.
- Ms. Indira Jaising, Sr. Adv. who was representing the Intervenors, argued that
"personal laws - whether codified or un-codified - regardless of the community,
are subject to Article 13 of the Indian Constitution and therefore void to the
extent that they violate fundamental rights."
- She also concluded by advancing the general proposition that "any divorce which
is unilateral and without judicial oversight violates Articles 14, 15 and 21 of
the Indian Constitution. Also, the general Islamic concept of marriage among
Muslims is admittedly a contract it cannot be dissolved unilaterally."
- Mr. Anand Grover, Sr. Adv, started by pointing out that "the AIMPLB is a private
body that isn't representative of the views of all Hanafi Muslims. He asserted
that there are differences in the Hadith texts and read an interpretation of
Hadith which prescribed that triple talaq should be staggered."
Judgment by Court:
- Mr. Kapil Sibal, Sr. Advocate, representing the All India Muslim Personal Law
Board (AIMPL) began by emphasizing that the core underlying issue before the
court is that of patriarchy which pervades every religion and not the issue of
- Mr. Sibal referred to the Constituent Assembly Debates to argue that the
definition of law under Article 13 does not include personal laws. He suggested
that the explicit mention of personal laws in the Concurrent List (List III of
the Seventh Schedule) and its absence in Article 13 demonstrates the
Constitution makers' intention to exclude personal laws.
- Mr. Sibal then sought to place this case in a historical and social context. He
noted that it is important to protect minority rights in a Hindu majority state.
Most jurisdictions that passed legislation abolishing triple talaq have Muslim
majorities. Hence, India must be sensitive to the Muslim community's minority
status before legislation is proposed.
- Mr. Sibal responded that while the Quran is silent on triple talaq, there is
nothing in it that prohibits triple talaq. Moreover, petitioners' view that the
Quran alone is the source for understanding talaq is incorrect as the Sharia is
based on the Quran, Hadith, and interpretations of scholars.
- Mr. Sibal concluded arguments by claiming that Muslim women are not
discriminated against by the triple talaq rule and may even benefit from
immediate relief from bad marriages. He proposed four options for a Muslim woman
to protect herself from a discriminatory use of the triple talaq: first, she may
register the marriage under the Special Marriage Act, 1954; second, she can
insert conditions into the Nikahnama to prohibit her husband from exercising a
triple talaq; thirdly, she delegates the right to talaq to herself and finally,
insist on the payment of a high Mehr amount to deter the exercise of triple
- He concluded arguments by emphasizing that the Hanafi school is a religious
denomination and that every denomination's right to practice religion is
protected under Article 26 of the Constitution.
- Mr. Goel argued that the question of assessing the constitutional validity of
triple talaq does not arise as the divorce is between two private individuals
and there is no state action involved.
- Moreover, since marriage is a private
contract under Islamic Law, no State legislation can change it.
- Mr. Giri, Sr. Advocate, cited verses from the Quran to argue that marriage and
divorce have sources in religious scriptures and thus are essential matters of
religion protected under Articles 25 and 26 of the Constitution.
The Supreme Court laid down its judgment on August 22, 2017 in a 3:2 majority,
holding the practice of Triple Talaq unconstitutional. The 5-judge bench that
heard the controversial triple talaq case in 2017 was made up of different faith
members. The five judges were from five different communities i.e., Chief
Justice JS Khehar (a Sikh), Justices Kurian Joseph (a Christian), RF Nariman (a
Parsi), UU Lalit (a Hindu), and Abdul Nazeer (a Muslim).
Justice Rohinton Nariman and Uday Lalit held that talaq-e-bidat is regulated by
the Muslim personal law (Shariat) application 8, 1937. They held the practice is
unconstitutional because it is arbitrary. Justice Kurian Joseph, on the other
hand, noted that triple talaq is against the Quran, hence it lacks legal
sanction. He wrote, "what is held to be bad in the Holy Quran cannot be good in
Shariat and, what is bad in theology is bad in law as well". They held that this
practice of Instantaneous Triple Talaq is against both theologies as well as law
and just because it is followed by a large number of people, it cannot be
Notably, the dissenting minority opinion of chief justice Khehar and Justice
Abdul Nazeer held that such a practice is an essential religious element of
Islam. They justified this stance on the basis that this practice of
talaq-e-biddat is followed around by a large number of people. So, since this
practice has the sanction of religious denominations and is also followed by an
overwhelming majority of the Muslim population, it is to be declared
constitutional as well as an essential religious practice.
It is mentioned under Article 25 of the Constitution that the state cannot take
away any essential religious practice of a person. Hence, if a practice is
arbitrary and not an essential religious practice, it will be categorized under
the exception laid down under Article 25. On that account, the whole issue was
whether or not the practice of Talaq-e-biddat, is an essential religious
practice of Islam.
Justice Khehar believed that as far as the exceptions that are mentioned in
Article 25(1) of the Constitution, this practice was not violative of any of
these exceptions as Shariat or Muslim Personal law is not based on any state
In the above case that is Shayara Bano v. Union of India,
the Apex Court has
held the practice of triple talaq (talaq-e-biddat), unconstitutional by a 3:2
majority. And recently, that is on 30th July 2019, the parliament of India,
passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019, that
declared the practice of triple talaq as illegal, unconstitutional, and also
made it a punishable act from 1st August 2019. The courts have finally brought
justice to those women who have been a victim of Triple Talaq. The court has
ensured that the ideas of equality especially gender equality are not a mere