Shayara Bano v. Union of India

The Shayara Bano v. Union of India (2017) case is a landmark judgment of the Supreme Court of India that declared the practice of Triple Talaq (Talaq-e-Biddat) unconstitutional. The decision, delivered by a five-judge Constitution Bench, marked a turning point in the legal history of India by affirming that instant divorce through triple talaq violated the fundamental rights of Muslim women under Articles 14, 15, 21, and 25 of the Constitution. The judgment upheld the supremacy of constitutional morality over personal laws when they conflict with fundamental rights.

Background and Context

The case emerged from the controversial Muslim practice known as Talaq-e-Biddat or instant triple talaq, whereby a Muslim man could unilaterally and irrevocably divorce his wife by pronouncing the word “talaq” three times in one sitting, either orally, in writing, or even through electronic communication.
This practice was recognised by some interpretations of Hanafi Islamic law but had been abolished in several Muslim-majority countries, including Pakistan, Bangladesh, and Indonesia. In India, however, the practice continued to prevail under the Muslim Personal Law (Shariat) Application Act, 1937.
Shayara Bano, a Muslim woman from Uttarakhand, was divorced by her husband through instant triple talaq after 15 years of marriage. In 2016, she filed a writ petition under Article 32 before the Supreme Court, challenging the constitutional validity of three practices under Muslim personal law:

1. Talaq-e-Biddat (instant triple talaq)
2. Nikah Halala (the requirement that a divorced woman must marry and consummate marriage with another man before remarrying her first husband)
3. Polygamy (the right of a Muslim man to have four wives)

While the Court primarily focused on the validity of triple talaq, the other issues were left for future consideration.

Facts of the Case

Shayara Bano argued that she had been arbitrarily divorced through a practice that was oppressive, unilateral, and discriminatory. Her petition contended that Talaq-e-Biddat violated her fundamental rights guaranteed by the Constitution.
The Union of India, All India Muslim Personal Law Board (AIMPLB), and several women’s rights organisations were parties to the case. The matter was heard by a five-judge Constitution Bench comprising:

• Chief Justice J. S. Khehar
• Justices Kurian Joseph, R. F. Nariman, U. U. Lalit, and S. Abdul Nazeer

The judges represented diverse faiths — Sikh, Christian, Parsi, Hindu, and Muslim — symbolising India’s secular judicial ethos.

Issues Before the Court

The principal constitutional questions considered were:

1. Whether Talaq-e-Biddat (instant triple talaq) is protected by Article 25 of the Constitution as a matter of religious freedom.
2. Whether the practice violates the fundamental rights of equality, non-discrimination, and personal liberty under Articles 14, 15, and 21.
3. Whether the Muslim Personal Law (Shariat) Application Act, 1937, gives statutory status to the practice, thereby making it subject to constitutional scrutiny.
4. Whether the Court can intervene in matters of personal law to ensure compliance with constitutional morality and fundamental rights.

Arguments of the Parties

Petitioner’s Arguments (Shayara Bano and others):

• The petitioner argued that Talaq-e-Biddat was arbitrary, unilateral, and capricious, violating Article 14 (right to equality) and Article 15 (non-discrimination on grounds of religion and gender).
• It was contended that the practice deprived women of dignity and personal liberty, violating Article 21.
• The petitioners also asserted that instant triple talaq was not an essential religious practice in Islam, and hence not protected under Article 25.
• They further argued that even if it were part of personal law, constitutional supremacy must prevail over religious practices inconsistent with fundamental rights.

Respondents’ Arguments (AIMPLB and others):

• The All India Muslim Personal Law Board (AIMPLB) contended that Muslim personal law is based on Shariat, which enjoys protection under Article 25 (freedom of religion).
• It argued that Talaq-e-Biddat, though undesirable, is a valid form of divorce under Hanafi jurisprudence and cannot be challenged on constitutional grounds.
• The Board further claimed that since personal laws are not derived from statutory enactment, they are not subject to judicial review under Part III of the Constitution.
• It also warned that judicial interference in personal laws would amount to infringement of religious freedom and violation of secularism.

Union of India’s Position:

• The Government of India supported the petitioner’s stance, asserting that gender justice and equality are part of public order, morality, and health, which limit religious freedom under Article 25(1).
• It argued that personal laws must be consistent with constitutional values and cannot be above fundamental rights.

Judgment of the Supreme Court

The judgment was delivered on 22 August 2017, with a 3: 2 majority declaring Talaq-e-Biddat unconstitutional and void.
Majority Opinion (Justices R. F. Nariman, Kurian Joseph, and U. U. Lalit):

1. Violation of Fundamental Rights:
   • The majority held that instant triple talaq is manifestly arbitrary and violates Article 14 (equality before law).
   • It deprives women of their right to equality, dignity, and non-discrimination.
2. Not an Essential Religious Practice:
   • The Court ruled that Talaq-e-Biddat is not an essential part of Islamic religious practice, as it has been disapproved and even banned in several Islamic countries.
   • Therefore, it does not enjoy constitutional protection under Article 25.
3. Arbitrariness and Lack of Legal Sanctity:
   • Justice Nariman observed that the practice is arbitrary because it allows a Muslim man to divorce his wife without reason, notice, or reconciliation.
   • It violates the principle of non-arbitrariness, which is central to Article 14.
4. Applicability of Constitutional Review:
   • The majority held that the Muslim Personal Law (Shariat) Application Act, 1937, gives statutory recognition to Muslim personal law, thereby making it subject to fundamental rights review.

Dissenting Opinion (Chief Justice J. S. Khehar and Justice S. Abdul Nazeer):

• The dissenting judges held that Talaq-e-Biddat, though undesirable, is integral to the personal law of Muslims and thus protected under Article 25.
• They argued that the practice could not be struck down by the judiciary but could be abolished through legislative action.
• They directed the Union Government to frame a law regulating triple talaq within six months, and until then, imposed an injunction restraining its practice.

Ratio Decidendi

The ratio decidendi of the case is that the practice of Talaq-e-Biddat (instant triple talaq) is arbitrary, unconstitutional, and violative of fundamental rights, particularly Article 14 (equality) and Article 21 (right to life and dignity). Since it is not an essential religious practice, it does not enjoy protection under Article 25.

Significance of the Judgment

The Shayara Bano case is one of the most significant judgments advancing gender justice and equality in India.
1. Victory for Muslim Women’s Rights:

• The judgment ended a centuries-old discriminatory practice, ensuring constitutional protection for Muslim women against arbitrary divorce.

2. Affirmation of Constitutional Supremacy:

• The decision reaffirmed that personal laws are subject to fundamental rights, upholding the supremacy of the Constitution over religious practices.

3. Expansion of Judicial Activism:

• The ruling exemplified the judiciary’s proactive role in reforming personal laws to ensure gender justice and equality.

4. Legislative Response:

• Following the judgment, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which:
  • Declared Talaq-e-Biddat void and illegal;
  • Made pronouncement of instant triple talaq a cognisable and non-bailable offence;
  • Provided for subsistence allowance and custody rights for affected women.

5. Reinforcement of Gender Equality:

• The case strengthened the constitutional commitment to Article 15(1) (prohibition of discrimination on grounds of religion and sex) and Article 15(3) (special provisions for women).

Criticism

While widely hailed as a progressive judgment, it was not free from criticism:

• Some scholars argued that judicial interference in religious matters might undermine secularism by allowing courts to decide theological questions.
• Others believed that the criminalisation of triple talaq under the 2019 Act was excessive, as it may lead to misuse and breakdown of families.
• The dissenting view cautioned that judicial overreach could set a precedent for courts to intervene in other personal laws without legislative backing.

Legacy

The Shayara Bano v. Union of India (2017) judgment stands as a milestone in the struggle for women’s rights and constitutional justice in India. It reaffirmed that religious freedom cannot override fundamental rights, particularly the right to equality and dignity.
By striking down instant triple talaq, the Supreme Court reinforced India’s constitutional values of secularism, gender justice, and rule of law, ensuring that faith remains subordinate to fundamental rights. The case remains a historic testament to the judiciary’s role in shaping a more equal and inclusive society.