In the matter of Shayra Bano v. Union of India, dated Aug 22, 2017, a 5 judge bench of the Supreme Court by a ratio of 3:2 majority struck down triple talaq as violative of Article 14 and 21 of the Constitution. The decision was rendered by a Bench of Chief Justice of India JS Khehar, along with Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer.
What is Triple Talaq?
Triple Talaq is also known as Talaq-e-biddat or instant talaq in which the husband pronounces talaq three times and divorces his wife. The pronouncement can be oral or written and nowadays, talaq is also communicated via electronic means like Whatsapp or SMS the method which is not permissible in Islam.
Kinds of Talaq
The most approved form of Talaq in Islam is called Talaq-e-ahsan. Talaq-e-ahsan and Talaq-e-hasan forms of talaq are recognized by Holy Quran whereas Talaq-e-biddat is a creation of the Ummayad kings to fulfil their ill intentions. Both Talaq-e-ahsan and Talaq-e-hasan are revocable divorce but talaq-e-biddat form of divorce is irrevocable.
What does the judgment say?
The majority judgment was written by Justice R F Nariman. While Justices Nariman and Lalit held that instant Triple Talaq is unconstitutional and violative of Article 14 (Right to Equality), Justice Joseph struck down the practice on the ground that it goes against Shariat and the basic tenets of the Quran. The three were part of the majority judgment.
Justice Kehar and Justice Nazeer dissented the majority judgment and wrote their minority judgment. Here is the brief of the minority view :
- Triple Talaq integral to Islam in India and part of personal law
- It is a practice which had prevailed for a long time.
- Triple Talaq does not violate Articles 14, 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty) which are sanctions against state action.
- Practice is, however, not present even in theocratic Muslim States.
- Directs Union of India to frame appropriate law in this regard.
- Injuncts Muslims from exercising triple talaq for six months.
Section 2 of the Shariat Act 1937 was struck down to the extent that it recognizes triple talaq
The Supreme Court said, “It is clear that this form of 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 393 fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application 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. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.”
Though the practice of triple talaq was held unconstitutional but it did not look into the evil practices of nikah halala and polygamy. These issues are still pending in the supreme court for decision.