Shayara Bano V. Union Of India

WRIT PETITION (C) NO. 118 Of 2016

DECIDED ON: 22.08.2017

Equivalent Citation: (2017) 9 SCC 1
Bench: Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice RF Nariman, Justice UU Lalit and Justice Abdul Nazeer.

Background:

Talaq-e-biddat or popularly known as Tipple Talaq is a practice that allows a Muslim man to take an immutable divorce from his wife by saying the word 'talaq' thrice.

The petitioner Shayara Bano approached the court for setting aside the divorce pronounced by her husband through talaq-e-biddat

The validity of triple talaq was challenged in the court of law.

It was argued that under Article 25 of the Constitution, the state cannot take away the essential religious practice of a person and talaq-e-biddat is an essential religious practice of Muslims.

The whole issue revolves around whether this practice is an essential religious practice under Islamic Law.

Facts:

The Petitioner filed a Petition in the Supreme Court of India challenging the practice of triple talaq and whether it is an essential religious practice.

The Petition has also claimed that this practice violated Muslim Women’s’ right to equality under article 14 and 15 of the Constitution along with article 21.

Besides this petition, various other petitions, challenging the same issue, were clubbed by Supreme Court in one petition for purpose of hearing.

Laws applicable:

Article 14 of the Indian Constitution- Equality before Law
Z

The state shall not deny to any person equality before the law or equal protection of the laws within the territory of India Prohibition of the discrimination on the grounds of religion, race, caste, sex or place of birth.

Article 25(1) of the Indian Constitution – Freedom of conscience and free profession, practice and propagation of religion
Z

Subject to public order, morality, and health and the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Issues:

Whether Triple Talaq is valid.

Whether Triple Talaq is an essential religious practice or not.

Arguments:

Petitioner’s Arguments are as follows-

Triple talaq is violating article 14, 15, and 21 of the Constitution as this practice is arbitrary and discriminatory.

Although Muslim is a personal law it should be considered as valid law in force as within Article 13(1) of the Constitution.

Constitutional provisions concerning religious freedom do not cause prejudice to the jurisdiction of the court.

The practice of triple talaq cannot be protected under article 25 as this is not an essential religious practice.

Respondent’s Arguments are as follows-

Abolition of the practice of talaq-e-biddat would be contrary to Quranic tenets and the same is acknowledged by Hanafi School of Sunni Muslims.

The husband pronounced talaq is consonance with the valid mode of the dissolution of marriage under the Hanafi sect of Sunni Muslims.

Polygamy is a practice that is practiced worldwide and this practice exists for improving the condition of Muslim women than in the pre-Islamic times.

Supreme Court does not have any right to intervene in the religious practice of Islam and under article 25(1), talaq-e-biddat can be practiced as an essential religious practice.

Judgment:

Supreme Court has given the judgment in the majority of 3:2 declaring the practice of triple talaq as unconstitutional.

The majority bench found that Triple Talaq is not an essential religious practice and cannot be protected by the exception under article 25 of the Constitution.

The court has provided that the essential practices are those which are significant to the propagation of religion and taking away such practice can cause a substantial change in the profession and propagation of religion.

Non-essentiality was justified on the ground that such practice is against the basic doctrines of Quoran and whatever practice is against Quoran is against the Shariat as well and what is bad in theology cannot be considered good in law.

The bench found that merely because practice is widespread and practiced from the time immemorial it cannot be considered as an essential religious practice.

The said practice was held to violate the right to equality under Article 14 of the Constitution as this practice is against the rights of Muslim women because they have no say in the declaration of divorce, as allowed in other religions.

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