TALAQ! TALAQ! TALAQ! A Muslim husband stated these three words to his wife, and their marriage ended. What about the woman and their children? Do these unilateral divorces have any validity? Don't you think the instant triple talaq practice violates the woman's fundamental rights guaranteed under the Indian constitution? Well! This article discusses the Shayara Bano Case in which "instant talaq" was dealt with and argued for a long time. Let's see what happened in the case!
What is the 'Triple Talaq' practice?
According to Sharia Law, there are three different sorts of divorce, but only "talaq-e-biddat" is irrevocable. It is mainly practised by Muslim groups in India that adhere to the Hanafi School of Law. Muslim wives are not allowed to divorce their spouses under Islamic law, but husbands are. The Muslim Personal Law (Shariat Application Act, 1937) requires women to initiate a court procedure for divorce. Shayara Bano and Rizwan Ahmed had been married for 15 years.
Shayara Bano Case
Shayara Bano was married to Rizwan Ahmed for 15 years, and according to the claims, she was subjected to dowry harassment and domestic violence.
In 2016, she was divorced through talaq-e-bidat, which initiated the writ petition filed before the Supreme Court.
The petition stated that the practices of Nikah- Halala, triple Talaq and polygamy under Muslim personal law were unconstitutional, illegal and violated the fundamental rights guaranteed under Art 14, 15, 21, and 25 of the Indian Constitution.
The Union of India and women's rights groups, including the Bhartiya Muslim Mahila Andolan (BMMA) and the Bebaak Collective, supported Ms Bano's petition to declare these practices unconstitutional. They even sought the CourtCourt to pronounce that the Fundamental Rights apply to personal law.
The All-India Muslim Personal Law Board (AIMPLB) has argued that since Muslim personal law is not codified and is protected by Article 25 of the Constitution, it is not subject to constitutional judicial review. Additionally, the CourtCourt lacks jurisdiction to consider a constitutional challenge to Muslim personal law.
The Court sought written responses from the Union of India and Shayara Bano, several organisations working for women's rights, and the All-India Muslim Personal Law Board (AIMPLB) on the challenges and issues surrounding polygamy, nikah-halala, and talaq-e-bidat on February 16, 2017.
Does Triple Talaq violate any fundamental right guaranteed under the Constitution of India?
Does the practice of talaq-e-biddat (instant Talaq) come under the purview of an essential practice of Islam?
The SC established a 5-Judge Constitution Bench on March 30, 2017, to hear the case. J.S. Khehar, the Chief Justice, and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer formed the Bench. The Bench considered the case from May 11 to May 19, 2017, and the judgement was handed down on August 22 of that same year. The majority of the 3:2 vote determined that the talaq-e-biddat custom was "manifestly arbitrary" and unlawful. Justice Nazeer and Chief Justice Khehar dissented on the grounds that the Right to Religion protected talaq-e-biddat and that Parliament should have drafted legislation to control the practice.
Triple Talaq was declared unconstitutional under Article 14 r/w article 13(1) of the Indian Constitution. The CourtCourt determined that the Muslim Personal Law (Shariat) Application Act, 1937 had penalised the practice as a matter of personal law. The punishment for committing this crime is imprisonment for up to 3 years.
The Court clarified that "an arbitrary action must include negation of equality" and found that the triple Talaq'sTalaq's provision that "the marital tie can be broken capriciously with no attempt at reconciliation to preserve it" constitutes an arbitrary act that violates Article 14 of the Indian Constitution.
The SC found that the practice of Triple Talaq or Talaq-e-bidat is not protected by the exception outlined in Article 25 since it is not an essential practice of Islam.
The Court argued that even though the Hanafi School engages in it, doing so is wrong. Triple Talaq is against the fundamental principles of Islam, and since Shariah contradicts Quran, what is evil in theology cannot be good in legislation.
Constitutional law vs Personal Law
On the surface, the Court's decision was the appropriate one to make. Still, most judges' methods appear different, which has led to a discussion on how to view personal law in a secular nation like India. It raises the issue of when it is appropriate for judges to render judgments regarding the legality of an uncodified practice like triple Talaq.
Justice Khehar examines it entirely from the perspective of the constitution, determining whether it can be upheld as legal under that system rather than from the perspective of Islamic law. Justice Khehar responded to the opposition's claim that personal law was not a state-enacted law and that only state-enacted law is subject to fundamental rights along similar lines. The main problem with the following argument is how a behaviour authorised and enacted by the State, even though it is uncodified under personal law, does not fall under the purview of the sovereign's law.
Now that we have taken a closer look at Justice Niraman's argument, we can see that he does believe that triple Talaq is "law in force" as defined by Article 13. With the very sound justification that since Talaq is granted broad jurisdiction by Section 211 of the Muslim Personal Law (Shariat) Act of 1937, it inevitably falls under the purview of state laws.
Therefore, the obvious question in this situation is: Are any pertinent fundamental rights—specifically, Articles 14 and 15 that cover the right to equality—being violated, or may it be protected by a fundamental right like the right to religion, as stated in Article 25?
Undoubtedly, the significant ruling in the Shayara Bano case is a step toward equality and has set the stage for upcoming social and personal legislation changes. A step toward secularism, this ruling in the Shayara Bano case also dealt with the minority.
It would significantly impact furthering women's rights and gender equality in India, even though the main focus was not on gender justice. It is anticipated that this decision would be seen objectively and help Muslim women live better, safer lives as mandated by the law of the State.