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#GenderJustCourts - Invalidating the practice of Instant Triple Talaq: Shayara Bano and Ors. vs. Union of India and Ors.

December 6, 2017

This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.

 

The Shayara Bano case, 2017, is a landmark judgement in the history of Muslim personal laws in India.

 

Background of the case

Instant triple talaq, or talaq-e-biddat, is one of the various forms of divorce in classical Muslim law. The right to pronounce talaq-e-biddat is conferred only upon the husband. As opposed to the practice of talaq-e-hasan, where the husband pronounces talaq thrice, with a gap of one month in between each pronouncement, talaq-e-biddat can be pronounced in one sitting. This form of talaq has often been criticised for not providing the man with the time and consideration that is necessary to rethink his decision of divorcing his wife, or affording the wife the opportunity of attempting reconciliation. Talaq-e-biddat was considered especially notorious as  triple talaq pronounced in anger, even over the phone or text message, was considered valid.

 

In 2002, in the case of Shamim Ara v. State of Uttar Pradesh, the Supreme Court held that the practice of triple talaq was un-Islamic, and therefore, invalid. This question came before the Supreme Court for consideration again in the case of Shayara Bano and Ors. v. Union of India and Ors.

 

In this case, aggrieved women Shayara Bano and two others approached the court for a declaration that the talaq-e-biddat pronounced upon them by their husbands was invalid for being unconstitutional and violative of Articles 14, 15, and 21. They also argued that this form of talaq is un-Islamic, and therefore, cannot be considered as a part of Shariat.

 

Highlights of the case

The Court, by a 3:2 majority, held that instant triple talaq was invalid. However, the court was deeply divided on the reasons for the same. While the minority held that a constitutional challenge to personal law did not hold, and triple talaq was not un-Islamic, therefore necessitating a legislative intervention rather than a judicial one, the majority ruled that it was invalid.

 

Two out of three judges in the majority held it to be invalid for being unconstitutional and violative of Article 14. According to Justices Lalit and Nariman, given that talaq-e-biddat was instant and irrevocable, it eliminated the possibility of any reconciliation between the husband and wife. Justice Joseph, however, declared it invalid for being un-Islamic, as it did not find support in Quran, and therefore, could not be considered a part of Shariat.

 

Towards Gender Justice? Definitely!

To the extent that this case re-affirms the position of the Supreme Court in the case of Shamim Ara, it is definite step towards gender equality. However, the excessive attention on the practice of triple talaq takes away from the need to economically empower women. Liberal divorce laws by themselves cannot be said to be disempowering, unless accompanied by a lack of access to economic remedies, such as maintenance, alimony, right to residence, etc.

 

Further, uncodified personal law was held to be beyond the scope of the Constitution, and thus, exempt from judicial review, by the Bombay High Court in State of Bombay v. Narasu Appa Mali. This view, upheld by the Supreme Court in subsequent cases, has repeatedly obstructed the reform of personal laws, allowing for legislative interventions alone, thus compromising women’s fundamental rights. This case provided a monumental opportunity to the Supreme Court to overrule this much despised position of law. Unfortunately, neither of the opinions touch upon this issue.

 

Implications of the case

Divorce through instant triple talaq is no longer valid in law.


 

 

Saumya Maheshwari is a legal researcher at Partners for Law in Development, a Delhi based legal resource group committed to the realisation of social justice and equality for women. Views expressed are personal.

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