BY RISHA FATEMA FROM DR. K. N. MODI UNIVERSITY

Citation:

2017 9 SCC 1

Judgement Date:

22 August 2017

Judges:

Justice Jagdish Singh Khehar,

Justice Rohinton Fali Nariman,

Justice Uday Umesh Lalit,

Justice Kurian Joseph,

Justice Abdul Nazeer

Provisions:

Constitution of India

Jurisdiction:

Supreme Court of India

Key Words:

Triple talaq,

Talaq e biddat

Parties:

Shayara Bano,

Union of India,

All India Muslim Personal Law Board (AIMPLB)

Introduction:

In Islamic law, a husband can divorce his wife in three different forms i.e. talaq e ahasan, talaq e hasan, and talaq e biddat (triple talaq or instantaneous divorce).

‘Talaq e ahasan’ is the most approved form of divorce in Islamic law. In this form of divorce, the husband made the single pronouncement of the word ‘talaq’ in a period of tuhr.

After this pronouncement, the wife goes through the iddat period, a period of four months. If the husband and wife cohabitant during the iddat period, the divorce is considered resolved. Divorce becomes irrevocable after the completion of the iddat period.

‘Talaq e hasan’,

It is an approved form of divorce. This type of divorce consists of three pronouncements of talaq in three successive tuhr.

If the wife has reached the age of menopause, the interval between two pronouncements is of one lunar month.

The husband can revoke divorce after the first or second pronouncement if they resume their conjugal relations but the same become irrevocable after the third pronouncement.

‘Talaq e biddat’

It is a form of talaq or divorce in which the husband pronounces the word talaq three times simultaneously at the same time.

It is an irrevocable form of divorce. Talaq e biddat is recognized by only the Hanafi sect of the Sunni school but is considered as irrevocable.

However, the Hanafi sect recognized it as a sinful act. Talaq e biddat is nowhere mentioned in the Quran.

‘Polygamy’ means having more than one wife at a time. Islamic law allows a Muslim man to have four wives at the same time.

It is not permissible in Islam to marry the first wife or husband again after a divorce. If after divorce the woman marries another man and her second marriage does not last, she can go back to her first husband, this practice is known as ‘Nikah halala’.

Facts:

Shayara Bano was married to Rizwan Ahmed for 15 years. On 10/10/2015, he divorced her through instantaneous triple talaq (talaq e biddat).

She filed a writ petition in the Supreme Court asking it to hold three practices – talaq e biddat, polygamy, and nikah halala as unconstitutional as they violate Articles 14, 15, 21, and 25 of the constitution.

The contentions were that these practices are unconstitutional and supported by the Union of India and women’s rights organization. However, All Indian Muslim Personal Law Board (AIMPLB) opposed the same.

Issues:

Whether the practice of triple talaq is protected under Article 25?
Whether the practice of triple talaq is an essential practice of Islam?

Arguments:

Arguments by the Petitioner

The petitioner contended that triple talaq violates the articles 14, 15, 21 and 25 of the Constitution of India.

It provides unrestricted powers to the Muslim men. However, according to Islamic law talaq e biddat is a sinful act.

Arguments by the Defendant

The defendant side argued that the court cannot interfere in personal laws or uncodified Muslim law is not subjected to judicial review.

These are essential practices of Islam and are protected under article 25 of the Constitution of India.

Judgment:

In August 2017 the five-judge bench of the Supreme Court pronounced its decision by 3:2 majority that the practice of triple talaq is unconstitutional.

The court ordered the Parliament to pass a law that prohibits the practice of triple talaq.

The Muslim Personal Law (Shariat) Application Act 1937 is void if it upholds triple talaq, according to Constitution.

The Supreme Court ruled that Talaq-e-biddat is not safeguarded by Article 25, as it is not an essential part of the Islamic religion.

To answer what is the essential practice Supreme Court observed that after removing the practice if it make a considerable change then it is an essential practice, which is protected by the Constitution.

Analysis:

Whether the practice of triple talaq is protected under Article 25?

The constitution of India aims to protect the religious belief of the communities, guaranteed in part III of the Indian constitution.

Article 25 states the freedom of conscience and free profession, practice, and propagation of religion subject to public order, morality, and health.

However, divorce is not subject to these provisions. It is an inherent religious matter. The constitution compels the courts to protect the personal laws as these are not subject to judicial interference.

Article 26 (b) of the Constitution of India guarantees to manage its own religious matter.

Talaq is a matter of personal law and the court should not interfere in the personal laws. This violates the right of the whole community.

Whether the practice of triple talaq is an essential practice of Islam?

Talaq e biddat or triple is not mentioned in the Quran. Any sect of Shia school does not recognize this kind of divorce. It is only recognized by the Hanafi sect of the Sunni school.

This sect also considers this form of divorce as lawful though sinful; hence it is bad in theology.

Pronouncement of the word talaq three times simultaneously makes it an irrevocable talaq. There is no option of reconciliation.

Conclusion:

After the ‘triple talaq judgment’ the legislation has passed The Muslim Women (Protection of Rights on Marriage) Act, 2019. Section 3 of the act declares talaq as void and illegal.

Section 4 of this act provides for the punishment of a maximum of three years if the husband pronounces triple talaq.

Section 5 states, that a woman is entitled to receive the amount of allowance from her husband for her and her dependent children.

According to the Islamic laws, talaq e biddat or triple talaq is a sinful act but if the husband has pronounced the talaq three times consecutively it would end the marriage.

Divorce is a religious matter subject to the personal law, and Articles 25 and 26 of the Constitution of India provide rights to the communities to practice and manage their religious affairs.

Judiciary should not intervene in the religious practices of any religion. Religion is not based on facts; it is based on faith and belief.

If the triple talaq is not valid and the institution of marriage between the husband and wife is the same, then how the woman is entitled to receive the allowances from her husband?

How a person who is in prison, would support his family and pay allowances to his wife?

The act has criminalized divorce which is a civil matter. Though divorce is a wrongful act but the criminalization of a conjugal matter is not appropriate by any means.

To constitute a criminal act mens rea is an essential element. But divorce is not constituted with planning to do something wrong. It is a result of the spur of the moment.