Shayara Bano v. Union of India

Shayara Bano, a Muslim woman from Kashipur in Uttarakhand, was married to Rizwan Ahmed. In 2015 her husband gave her talaq-e-biddat, an instant and permanent divorce made by saying 'talaq' three times in one sitting. The talaq was sent through a talaqnama (a written deed) dated 10 October 2015, which stated that the talaq had been given before two witnesses.

Talaq-e-biddat gives no time or chance for reconciliation, and the divorce becomes irrevocable at once.

In 2016 Shayara Bano filed a petition in the Supreme Court, saying this talaq was illegal and unconstitutional. She argued that even if the practice was recognised under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, it still violated fundamental rights.

Whether the practice of instant triple talaq (talaq-e-biddat) is valid under the Constitution, or whether it violates fundamental rights.

Petitioner's side:
1. Triple talaq is not part of the Shariat. The Quran and the teachings of Prophet Muhammad do not permit this kind of talaq.
2. The Shariat Act, 1937 cannot make talaq-e-biddat a rule of decision, because no practice that goes against the Quran can be valid.
3. Triple talaq violates Article 14 (equality), Article 15 (protection from discrimination) and Article 21 (life with dignity).
4. It cannot claim protection under Article 25, because religious freedom is subject to public order, morality and health, and this practice goes against the dignity of women.
5. Many Muslim countries, such as Egypt, Pakistan and Bangladesh, have abolished or regulated triple talaq.

The Union of India also supported the petitioner. It argued that instant triple talaq goes against gender equality.

Respondents (mainly the All India Muslim Personal Law Board):
1. Religious practices must be understood in the context of the community. Triple talaq is followed by Sunni Muslims of the Hanafi school.
2. Personal law is not State action, so Articles 14, 15 and 21 do not directly apply to it. They relied on the Narasu Appa Mali case (Bombay High Court, 1951), which held that personal laws are not 'laws in force' under Article 13.
3. Sensitive issues like this belong to Parliament, and the judiciary should not interfere.
4. Talaq-e-biddat, even if regarded as sinful in theology, has continued for 1400 years and should be treated as part of religious faith.

By a 3:2 majority, the Court held talaq-e-biddat invalid and set it aside. The majority judges reached this result by two different routes.

Justice Kurian Joseph held that triple talaq is not an essential practice of religion. A practice does not become valid just because it has continued for 1400 years. The Quran does not permit triple talaq, because it requires an attempt at reconciliation before talaq. The very purpose of the Shariat Act, 1937 was to remove customs that went against the Quran. So such a practice gets neither the support of the Shariat Act nor the protection of the Constitution. He relied on Shamim Ara (2002), where the Court had already held that such a talaq does not stand in law, and said he was only restating that position. His famous line: 'what is bad in theology is bad in law.'

Justice R. F. Nariman and Justice U. U. Lalit decided under Article 14. They held that the Shariat Act, 1937 is a statute, and triple talaq gets its recognition through it. So it is 'law' under Article 13 and can be tested against fundamental rights. This way they sidestepped the Narasu Appa Mali question. They held that triple talaq is manifestly arbitrary: a man can leave his wife without any reason and without any attempt at reconciliation. The practice is impulsive and unfair. Section 2 of the Shariat Act was therefore void to the extent that it recognised triple talaq. They also referred to Shamim Ara (2002), which required a reasonable cause and an attempt at reconciliation for a valid talaq. They rested their decision only on manifest arbitrariness and did not find it necessary to decide the discrimination argument.

Dissent: Chief Justice J. S. Khehar and Justice S. Abdul Nazeer held that the practice is part of Sunni personal law and is protected under Article 25, so the Court should not interfere. They asked Parliament to make a law. Until then, they would have restrained Muslim husbands from pronouncing talaq-e-biddat for six months by way of an injunction. Because this was only the minority view, the injunction never came into effect.

Constitution of India, Article 13; Article 14; Article 15; Article 21; Article 25; Muslim Personal Law (Shariat) Application Act, 1937, Section 2; Muslim Women (Protection of Rights on Marriage) Act, 2019

The case set aside instant triple talaq and opened a new chapter for the rights of Muslim women. It carries forward the story of Muslim women's rights that began with Shah Bano.

It shows three different approaches to religious practices:
1. Testing a practice against core religious texts (Kurian Joseph J.).
2. Testing it directly against Article 14 through manifest arbitrariness (Nariman and Lalit JJ.).
3. Protecting personal law under Article 25 and leaving change to the legislature (the dissent).

These same approaches appear again in the later Sabarimala reference. The case also led Parliament to pass the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Exam keywords: talaq-e-biddat; 3:2 majority; Kurian Joseph J.'s 'not essential' finding and 'what is bad in theology is bad in law'; manifest arbitrariness (Nariman and Lalit JJ.); Section 2 of the Shariat Act; dissent of Khehar CJI and Nazeer J.; the 2019 Act.

Hypothetical: Farhan gets angry with his wife Zoya during an argument and says 'talaq, talaq, talaq' in one sitting. He then tells her to leave the house.

Zoya consults her lawyer, Neha. Neha explains that after Shayara Bano, instant triple talaq has been set aside. It does not end the marriage, because it has no reasonable cause and no attempt at reconciliation, and the majority found it invalid. She adds that under the Muslim Women (Protection of Rights on Marriage) Act, 2019, Farhan's act is also a criminal offence punishable with up to three years' imprisonment and a fine. Zoya can also claim a subsistence allowance and custody of their minor child.

Had Farhan instead followed talaq-e-ahsan, which allows time for reconciliation, that method would not have been covered by this decision.