“It is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice”.


[Case Brief] Shayara Bano V. Union of India and others


Case Name: Shayara Bano V. Union of India and others

Case Number : W.P.(C) No. – 000118-000118 / 2016

Court: The Hon’ble Supreme Court

Bench: Jagdish Singh Khehar,CJI, S. Abdul Nazeer,J, Kurian Joseph,J, R.F. Nariman,J, Uday Umesh Lalit,J

Decided on: 22/08/2017

Relevant Act/Sections: Article (13,14) of the Indian Constitution, Section 2 of Muslim Personal Law (Shariat) Application Act, 1937


BRIEF FACTS AND PROCEDURAL HISTORY:

1. The petitioner-Shayara Bano, approached the Court, for assailing the divorce pronounced by her husband Rizwan Ahmad on 10.10.2015, wherein he affirmed in the presence of witnesses saying that I gave talak, talak, talak, hence like this I divorce from you from my wife.

2. The petitioner sought a declaration, that the talaq-e-biddat pronounced by her husband on 10.10.2015 be declared as void ab initio. She also contended that such a divorce be declared unconstitutional.

3. The nikah (marriage) between the petitioner and the respondent was solemnized on 11.04.2001, as per Shariat, at Allahabad.

4. The petitioner left her matrimonial home on 9.4.2015 in the company of her father and maternal as well as children Mohammed Irfan and Umaira Naaz, to live in her parental home.

5. The respondent claimed that he continued to visit the petitioner, for giving her maintenance, and for enquiring about her well being. When the husband met the wife at her parental home in May and June 2015, she refused to accompany him, and therefore, refused to return to the matrimonial home.

6. On 07.07.2015 the father of the petitioner, brought the two children Mohammed Irfan and Umaira Naaz to Allahabad.

7. It is claimed by the respondent-husband, that he made another attempt to bring back the petitioner-wife from her parental home on 09.08.2015, but Shayara Bano refused to accompany him.

8. Finding himself in the above predicament, Rizwan Ahmad approached the Court of the Principal Judge, Family Court at Allahabad, Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a prayer for restitution of conjugal rights.

9. The petitioner-Shayara Bano, preferred Transfer Petition pending at Allahabad, Uttar Pradesh, to the Principal Judge, Family Court, Kashipur, Uttarakhand.

10. Based on the above, the case of the respondent, pronounced talaq in consonance with the then prevalent and valid mode of dissolution of Muslim marriages

11. The respondent contended, that writ petition filed by the petitioner under Article 32 is not maintainable, as the questions raised in the petition are not justiciable under Article 32 of the Constitution.


ISSUES:

1. Whether the 1937 Act can be said to recognize and enforce Triple Talaq as a rule of law to be followed by the Courts in India and if not whether Narasu Appa (supra) which states that personal laws are outside Article 13(1) of the Constitution is correct in law.

2. Whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India?


RATIO OF THE COURT:

1. The petitioners, supported by the Union of India argued and stated that even though Triple Talaq may be sanctioned by the Shariat law as applicable to Sunni Muslims in India, it is violative of Muslim women’s fundamental rights to be found, more particularly, in Articles 14, 15(1) and 21 of the Constitution of India.

2. According to the petitioner side the subject matter of attack in these matters is a statute, namely, the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the “1937 Act”) and Triple Talaq is specifically sanctioned by statutory law vide Section 2 of the 1937 Act and what was sought for was a declaration that Section 2 of the 1937 Act is constitutionally invalid to the aforesaid extent.

3. The court observed that the 1937 Act is a pre-constitutional legislative measure which would fall directly within Article 13(1) of the Constitution of India.

4. The respondent side argued that the 1937 Act was only meant, as the non-obstante clause in Section 2 indicates, to do away with custom or usage which is contrary to Muslim personal law to which the court observed that such a constricted reading of the statute would be impermissible in law, but it is difficult to read the non-obstante clause of Section 2 as governing the enacting part of the Section, or otherwise it will become a case of the tail wagging the dog.

5. It was observed that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India.

6. It later added that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.

7. The court also stated that it is this view of the law which the 1937 Act both recognizes and enforces so as to come within the purview of Article 13(1) of the Constitution.

8. The court observed that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it.

9. By reffering from a celebrated passage in the case of Ajay Hasia v. Khalid Mujib Sehravardi, the court observed that the arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action is clear.

10. The court was of the view that arbitrariness in the sense of manifest arbitrariness would apply to negate legislation as well under Article 14.


DECISION HELD BY COURT:

1. The court held that the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

2. It also held that Triple Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.

3. The practice of ‘talaq-e-biddat’ – triple talaq was set aside in view of the different opinions recorded, by a majority of 3:2


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