Equivalent citations: (2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016 Petitioner: Shayara Bano versus Respondent: Union of India and others with Suo Motu Writ (C) No. 2 of 2015 In Re: Muslim Women’s Quest For Equality versus Jamiat Ulma-I-Hind Writ Petition(C) No. 288 of 2016 Petitioner: Aafreen Rehman versus Respondent: Union of India and others Writ Petition(C) No. 327 of 2016 Petitioner: Gulshan Parveen versus Respondent: Union of India and others Writ Petition(C) No. 665 of 2016 Petitioner: Ishrat Jahan versus Respondent: Union of India and others Writ Petition(C) No. 43 of 2017 Petitioner: Atiya Sabri versus Respondent: Union of India and others Date of Judgement: 2017.08.23 Bench: Jagdish Singh Khehar(CJ), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, S. Abdul Nazeer JJ.
The Muslim Law classifies Divorce into the following categories i.e.
A. By the Death of the Husband
B. By the Act of the Parties
I. By the Husband
3. Ila (Vow of continence)
4. Zihar (Injurious Comparison)
II. By the wife
Talak-e-Tafwid (Delegated Divorce)
III. By Mutual Consent
1. Khula (Redemption)
2. Mubarat(Mutual Freeing)
IV. By Judicial Process
1. Lian (Mutual Imprecation)
2. Faskh(Judicial Annulment)
All the above stated types of Divorce are valid in Islamic law however, it is Talak-ul-Biddat which is the issue of controversy. This is known as Tripe Talaq which was challenged before the SC in this case. Talak-ul-biddat is although banned in Shias.However, in Hanafi School is thought as sinful but is practiced by a large Muslim community who follow Hanafi school. In this type of Talaq the Husband does not follow the approved form of Talaq i.e. talaq-ul-sunnat and he neither waits for iddat period nor to the abstention from sexual intercourse. This was an escape route developed by the Islamic patriarchal society to avoid their marriage.
In this form of Divorce husband repudiates his wife by three divorces in one sentence. The biggest problem with this type of talaq is that it is one of irrevocable nature unlike its counterparts.
This immediate appeal was filed in the apex court by ShayaraBanoa victim of this demonic practice. She claimed the enforcement of the Fundamental Rights mentioned under Article 14. In the mean-time there were numerous petitions challenging the same issue therefore, SC clubbed all the petitions in one and heard it. Various NGO’s and even union government was supporting the cause.
- The validity of triple talaq.
- Whether Triple Talaq is an essential religious practice?
The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the practice of Triple Talaaq unconstitutional. The majority judgment was written by Justice Nariman for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the majority opinion Chief Justice Kehar for himself and on behalf of Justice Nazeer wrote the minority opinion. While the majority upon lengthy discussion came to the conclusion that Triple Talaq is not an essential religious practice but minority bench found this practice to be an essential religious practice.
Under Article 25 of the Constitution the state cannot take away the essential religious practice of a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down u/a 25. Therefore, the whole issue was whether or not the practice is an essential religious practice of Islam.
Therefore, as per majority it was held that the Triple Talaqor Talaq-e-biddatis not protected by the exception laid down in Article 25 i.e. the court found the said practice not an essential element of Islamic religion. The court justified its point of view in the sense that although it si practiced by the Hanafi School but it is considered sinful in it. Triple Talaqis against the basic tenets ofQuoran and whatever is against Quoranis contrary to Shariat therefore, what is bad in theology cannot be good in law. The majority bench relied on its earlier decision Shamim Arawhich held that this practice of Triple Talaq is against both theology and law and just because it is followed by a large number of people it cannot be validated. Therefore, such practice is declared unconstitutional and set aside.
Article 25 in it carries the right of every person to freely practice and propagate any religion of choice and such practice is only restricted in the context of the following exceptions:
- Public Order
- Other Provisions of Part III of the Constitution
Although the said practice has no relevance to the first three exceptions but the said practice is surely against other provisions of Part III namely Article 14. The said practice is in violation of the Fundamental Right of equality since it is against the rights of women as they have no say in the declaration of divorce unlike in other religions. Nariman & Lalit JJ. held that the impugned practice is a tool by which marital tie can be broken on whims of Husband without any attempt of reconciliation to save it. This form of Talaq therefore, is in violation of Article 14 and liable to be struck down by the courts.
What is an essential religious practice? It depends on the background, history and tenets of the religion. If some practice is not prohibited then it does not necessarily mean that such practice is an essential religious practice. Essential religious practices are those on which the religion is founded upon. Essential religious are those which are fundamental to the profession and propagation of the religion. If taking away of a practice causes a substantial change in the religion then such practice can be called as ‘an essential religious practice.’ Only such practices are protected in Article 25(1). The usurpation of religious practices through state intervention will result in violation in rights mentioned in Article 25(1) & not with the usurpation of circumstantial and non-essential practices. The fact that majority of Islamic countries have done away with the said practice also reflects that the said practice is not one which will be called as an essential religious practice.
However, Justice Khehar, writing the minority opinion held that such practice is an essential religious element of Islam. The Minority bench of the court justified this stance on the ground that this practice is followed by a large population of people. Since this practice has the sanction of religious denomination and followed by an overwhelming majority of Muslim population, the said practice is declared to be constitutional and an essential religious practice.
Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of the Constitution, of the opinion that the impugned practice is not violative of any of these exceptions since Shariat or Muslim Personal law is not based on any state legislative action.
The Triple Talaq judgment is widely appreciated throughout the jurisdictions as a protection shield against the social evil such as this practice promoted. The majority bench on the face of it criticized the government for not making relevant laws to prohibit such a regressive practice. This act allowed the husband to end the marital tie on his whims and fancies, thereby making the life of the women hell. The Muslim women have since many years demanding the protection from such a regressive and bad practice and finally it was the apex court which gave them the appropriate remedy.
Justice Nariman at the outset said that as soon as he would find any violation of Fundamental Right, he will strike down the practice. There was no question that the said practice was an essential religious practice or notsince majority of Islamic nations have already banned the practice & in India only Hanafi School practices it. Therefore, it cannot be said that the practice is one of religious importance. The majority finding the said practice in violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the regressive act with 3:2 majority. The bench observed that merely because the practice is widespread and continuing from time immemorial it cannot be held as an essential religious practice. Hinduism also after finding Sati Pratharegressive removedit from the religion. Sati was also practiced widespread and practiced since time immemorial. Therefore, the court arrived at a very correct judgment.
The majority started its judgment by the phrase “what is bad in theology cannot be good in law”. This statement makes it clear the stance of the majority bench on the impugned act. One does not need to dwell down into the details and should understand that if Triple Talaqhad been a essential religious practice of Islam then in that case it would not have been banned in almost all Islamic nations. Further, the said practice is only practiced in Hanafi School who itself considers it sinful. Therefore, the majority bench correctly held such practice as unconstitutional.
The minority judgment written by CJ Kehar on the behalf of himself and Justice Nazeer was flawed in every aspect. The hon’ble judges should have considered that fact that
Firstly, an essential religious practice would not have been banned by the Islamic nations.
Secondly, an essential religious practice cannot be stated as sinful by the religion itself.
Thirdly, merely because one community of the religion follows the practice, then such practice cannot be termed as an essential religious.
The minority bench ignored the atrocities that are committed by the said practice. It is the duty of the courts to dispense justice and the courts should not be deterred by mere technicalities in dispense justice. The minority judgment is per incuriam as the judges said that however bad the practice be, if it is an essential practice it cannot be struck down. The whole reasoning of the minority bench is irrational, unfair and unjust. If the two judges have also ruled in the favor of majority the impact would be altogether different.
However, thanks to the justified reasoning provided by the majority bench India finally did away with the regressive and backward practice of Triple Talaqor Talaq-e-biddat.
After so many abortive attempts finally, a petition filed by ShayaraBano, Ishrat Jahan, Aafreen Rehman, Gulshan Parveen was successful in bringing justice to many unheard voices of India. The majority decision restored the trust that the common people possesses for the institution of Judiciary. The judgment proved that the democratic notions such as equality, liberty etc. would not bend down against any philosophy even if it is a religion. The courts finally brought justice to those women who have been a victim of Triple Talaq. Men after enjoying and extracting pleasure out of women used to abandon them easily by the virtue of Triple Talaq. Now, after the pronouncement of the judgment the situation has changed and made such incidents impossible.
No husband can now abandon his wife by ending marital tie on his whims and fancies. The court ensured that the ideas of equality especially gender equality is not a mere theoretical ideology. However, the opinion of minority bench worries the nation. If the Chief Justice of India is giving primacy to practices such as Triple Talaq ignoring the widespread atrocities, then there is some serious rethink required by the Judges of the apex court.
Edited by Chiranjeeb Prateek Mohanty
Shamim Ara v. State of U.P. (2002) 7 S.C.C. 518.