Shayara Bano v. Union of India
Supreme Court of India · 22 August 2017 · 5 judges
By a majority of 3:2 the Supreme Court set aside the practice of talaq-e-biddat (instant triple talaq), the majority judges resting on different grounds: manifest arbitrariness under Article 14, and inconsistency with the Quran and Shariat.
Facts
The petitioner's husband divorced her by a talaq-nama dated 10.10.2015, pronouncing talaq three times before two witnesses. She filed a writ petition under Article 32 seeking a declaration that talaq-e-biddat is void and unconstitutional, contending that it is not part of Shariat, cannot be a rule of decision under the Muslim Personal Law (Shariat) Application Act, 1937, violates Articles 14, 15 and 21, and is not protected by Articles 25(1), 26(b) and 29. The husband contended that the talaq was valid under the Hanafi school and that the petition was not maintainable. Connected writ petitions and a suo motu petition, In Re: Muslim Women's Quest for Equality, were heard with it. The Union of India supported the petitioners and the All India Muslim Personal Law Board opposed them. The Bench confined itself to talaq-e-biddat, leaving polygamy and halala to be dealt with separately.
Questions before the Court
- Is talaq-e-biddat (triple talaq) an essential religious practice protected by Article 25?
- Does the Muslim Personal Law (Shariat) Application Act, 1937 recognise and enforce triple talaq so that it can be tested against Part III, in particular Article 14?
- Is talaq-e-biddat valid in law, or should it be set aside?
What the Court held
- By a majority of 3:2 (Kurian Joseph, Nariman and Lalit, JJ.), the practice of talaq-e-biddat, that is triple talaq, is set aside, as recorded in the Order of the Court.
- Triple talaq is not protected by Article 25. Nariman and Lalit, JJ. held it is not an essential religious practice, since the Hanafi school which tolerates it regards it as sinful. Kurian Joseph, J. held that a practice against the tenets of the Quran can have no constitutional protection.
- Kurian Joseph, J.: once the 1937 Act made Shariat the rule of decision on talaq, no practice against the Quran is permissible. What is bad in the Quran cannot be good in Shariat, and triple talaq lacks legal sanctity, as Shamim Ara v. State of U.P. had held.
- Nariman and Lalit, JJ.: the 1937 Act recognises and enforces triple talaq and is a 'law in force' under Article 13(1). Triple talaq is manifestly arbitrary because the marital tie can be broken capriciously without any attempt at reconciliation, so Section 2 of the 1937 Act is void to that extent.
- Legislation, plenary or subordinate, can be struck down under Article 14 for manifest arbitrariness (Nariman and Lalit, JJ., with Kurian Joseph, J. agreeing on this question of law). Kurian Joseph, J. did not apply it here, holding with the Chief Justice that the 1937 Act does not regulate talaq.
Why it matters
The judgment ended the legal effect of instant triple talaq. Nariman, J.'s opinion, joined on the point of law by Kurian Joseph, J., accepts manifest arbitrariness, meaning action that is capricious, irrational, without adequate determining principle, or excessive and disproportionate, as a ground for striking down legislation under Article 14. Because the majority judges gave different reasons, the result rests on the Order of the Court rather than a single majority opinion.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, 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 fundamental right contained under Article 14 of the Constitution of India.”
“It will be remembered that under the third degree, Triple Talaq is a permissible action as to which religion is indifferent. Within the fourth degree, it is reprobated as unworthy. We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates Triple Talaq as being sinful. It is clear, therefore, that Triple Talaq forms no part of Article 25(1).”
“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq.”
“In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14. However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman, J.”
Provisions interpreted
Related judgments
Case and bench
- Parties
- Shayara Bano v. Union of India
- Case
- Writ Petition (C) No. 118 of 2016
- Decided
- 22 August 2017
- Bench
- Jagdish Singh Khehar, Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit, S. Abdul Nazeer
- Opinions
- Majority 3:2. Nariman, J. wrote for himself and Lalit, J., and Kurian Joseph, J. wrote separately, both setting aside triple talaq on different grounds; Khehar, CJI wrote for himself and Nazeer, J. in the minority. The Order of the Court records the 3:2 result.
Questions on this case
7 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
What was the order of the Court in Shayara Bano v. Union of India (2017)?
- A. Unanimously, talaq-e-biddat was upheld as an essential part of Muslim personal law
- B. By a majority of 3:2, the practice of talaq-e-biddat (triple talaq) was set aside
- C. By a majority of 3:2, talaq-e-biddat was upheld until Parliament enacts a law on it
- D. By a majority of 4:1, every form of talaq by a Muslim husband was declared void
Show the answer
B. By a majority of 3:2, the practice of talaq-e-biddat (triple talaq) was set aside
The order of the Court in Shayara Bano records that, in view of the different opinions, 'by a majority of 3:2 the practice of talaq-e-biddat, triple talaq, is set aside'. The decision did not touch other forms of talaq. Parliament later declared any pronouncement of such talaq void and illegal by Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
Question 2 · Legal Maxims & Jurisprudence Practice Set 1
What was a key outcome of the Supreme Court's judgment in the Triple Talaq case?
- A. Triple Talaq was upheld as constitutional
- B. Triple Talaq was referred to the legislature
- C. Triple Talaq was partially modified
- D. Triple Talaq was declared unconstitutional
Show the answer
D. Triple Talaq was declared unconstitutional
In Shayara Bano v. Union of India (2017) the Supreme Court, by majority, set aside the practice of instant triple talaq (talaq-e-biddat). Parliament later enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which makes such pronouncement void and illegal.