The world of Indian wives revolves around their husband and if such husband is entitled to end their matrimonial tie with the utterance of three words (i.e. Talaq, Talaq, Talaq), it may render her helpless and shatter her whole world apart. In most cases, in such situations, where the wife is uneducated and no means of livelihood making it very difficult to lead her life with dignity.
Triple Talaq or Talaq-e-biddat is the established convention for divorce in the Muslim religion and is in practice for several years. According to this practice, the husband by pronouncing “Talaq” three times could dissolve the matrimonial tie, rendering it impossible to provide any chance for reconciliation of the couple.
As aptly said by someone that ‘With great power comes great responsibility, what if such utterance of ‘Talaq, Talaq, Talaq’ was an act of rage or done in the spur of the moment? According to the beliefs of Muslim Schools which allows the practice of Triple Talaq, an instantaneous and irrevocable form of divorce, which does not give the husband any opportunity to rethink or reverse his deed. Additionally, even if he regrets his action and saves his matrimonial tie, it includes another custom known as ‘Halala’. As per Muslim personal laws, it means that if a husband wants to remarry his wife after the final and irrevocable divorce, he could do so only when his wife marries some other men (after the divorce) and then after consummating the marriage, she divorces him. Such practices are considered to be highly immoral, degrading, and humiliating for Muslim women.
Triple Talaq has been practiced for about 1400 years by the Muslim community. It is generally practiced by the Sunnis who follow the Hanafi School which constitutes about 90% of the Sunnis in India. In various instances, formerly, in the cases where the validity of triple talaq has been in question, its practice is considered to be “bad in theology but valid in law”. Although, Justice Krishna Iyer raised the concern with reference to such practice of divorce in the Kerala High Court. The judgment of Shamin Aru v. State of Uttar Pradesh is of utter significance as it is referred to in the instant case while contemplating the grounds for valid Talaq including Triple Talaq.
In this instant case, the husband divorces the petitioner by pronouncing ‘Talaq, Talaq, Talaq’ and thereby severing the 15 years matrimonial tie. Shayara bano, the petitioner, thereby filed the petition for seeking remedy against his husband’s actions, praying to the court such divorce to be declared void ab initio and such form of divorce i.e. triple talaq as well as polygamy and nikah-halala to be held unconstitutional as these practices are violative of A-14, 15 and 21 of the Constitution of India. However, the honorable court decided to focus on the validity of Triple Talaq in this instant case.
- Whether Triple Talaq has any legal sanctity?
- Whether Triple Talaq is essential and integral part of the Muslim personal laws and thereby, covered and protected under A-25 of Constitution of India?
- Whether Triple Talaq violates the fundamental rights of Muslim women and hence, unconstitutional?
- The Muslim Personal Law (Shariat) Application Act, 1937
Section 2: Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
- Constitution of India
- Article 13: Laws inconsistent with or in derogation of the fundamental rights
- Article 14: Equality before Law
- Article 25: Freedom of conscience and free profession, practice and propagation of religion
Evaluation of the Case
- Triple Talaq, as a part of Personal law, included under Sec 2 of the Muslim Personal Law (Shariat) Application Act, 1937
Triple Talaq is a well recognised and accepted convention of the institution of divorce practiced by Muslim community for several hundred years as a matter of their belief and their faith and practiced by large no. of Muslims in India which thereby leaves no doubt that it constitutes the part of Muslim Personal Laws. After the enactment of the Muslim Personal Law (Shariat) Application Act, 1937, the regulation of dissolution of marriage among Muslim community including triple talaq incorporated under Sec 2 of the Act. It was held by the court that the act was constituted in the pre-independence era by legislation, thus, it would come under the purview of the expression “laws in force” under A-13(3)(b) and thereby, can be declared void by the court of law if found inconsistent with part III or any other provision of the constitution of India.
- What can be considered as essential and integral part of any Personal Law?
The question whether an act (in pursuance of one’s faith or religion) constitutes an integral or essential part of the religion is to be ascertained regarding the beliefs, practices, doctrine and tenets, etc. of the particular religion. Essential part of the religion implies the core beliefs which lay the foundation of any religion. The main test for the determination of whether the practice constitute as an essential part of the religion is to find out whether the nature of the religion will be changed without such practice.
- Triple Talaq is not considered as an essential and integral part of Muslim Personal Law
In Shamin Ara, the court observed various findings as to how triple talaq does not complied with the essential Quaranic principles and thereby held “bad in both theology and law”. According to Holy Quaran, divorce is considered to be last resort only if it is not humanly possible for the couple to reconcile, however, triple talaq is an instantaneous and irrevocable form of divorce. Additionally, a practice does not become essential part of any religion by mere fact that it has been practiced since the time immemorial. Thus, it was held by the honorable court in this case that triple talaq cannot be considered as an essential and integral part of the Muslim Personal law as per A-25 for it is against the basic principles of the Holy Quaran and therefore, also contravenes the provisions of the Shariat Act.
- Triple Talaq held to be in violation of provisions of part III of the Constitution of India
Since, triple talaq is not an essential and integral part of Muslim personal law, it is not protected under A-25 as a fundamental right to practice it. In triple talaq, the matrimonial tie can be revoked anytime depending on the whims and caprice of the husband without providing any opportunity for the reconciliation, a perquisite condition as provided in the Holy Quaran before the dissolution of marriage, which is arbitrary in nature. Thus, by the virtue of the test of arbitrariness, triple talaq held to be violative of A-14 of the Constitution of India.
- Verdict of the Case
The case was heard by five judge bench of Supreme Court who held triple talaq unconstitutional by the majority of 3:2. There were three different approach adopted by the bench in which minority included Former Chief Justice Jagdish Singh Kehkar and Justice Abdul Nazeer while majority included Justice Rohinton Fali Niraman and Justice Uday Lalit however Justice K.M. Joseph perception of the case was entirely different but he at last conceded with the majority decision.
The judgement while providing the reasonable justification of the decision presses more over the legal sanctity of triple talaq and it is considered to be essential religious practice of Muslim Personal law rather than why it is in bad faith of the Muslim women. Moreover, concept of arbitrariness is given more significance instead of gender inequality imposed by the practice of triple talaq while concluding that triple talaq violates A-14 of Constitution of India.
The judgement of triple talaq was long awaited decision which bestows justice to no. of Muslim women and helped in sustaining the constitutional democracy of India. The honourable court in this decision was politically vigilant and tried to avoid any cultural backlash and prudent in not repeating its mistake made during Shah Bano case of making any controversial statement regarding the practices of Islam being derogatory to Muslim women. However, this is one of the landmark decision in the history of judiciary of India which not only granted relief to the aggrieved Muslim women but also ended deep-rooted evil practice implying Indian judiciary is proficient enough to scrap any such practice which harms the society in any way even if it is practiced since the time immemorial.
- Shayara Bano vs Union Of India Case Analysis (Triple Talaq case) – Law Circa
- Judgment Analysis – Shayara Bano Case – Triple Talaaq Illegal (shoneekapoor.com)
AIR 2017 9 SCC 1 (SC) ↑
Yousuf Rawther v Sowramma (AIR 1971 Ker 261) ↑
AIR 2002 SCC 3551 ↑
AIR 2002 SCC 3551 ↑