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Shayara Bano v. Union of India, AIR 2017 | CASE ANALYSIS

Shayara Bano v. Union of India, AIR 2017 SC 609

Abstract:

Islam is considered to be one of the oldest religions around the world followed by Christianity and others. Often, Islam is criticized in the name of terrorism and their religious customs and talaq systems. Shayara Bano, an Indian Muslim, was wedded to Rizwan Ahmed meant for 15 years. The case was brought up to the Supreme Court against the Union of India since it was a matter of religion and the whole custom was at stake. Various organizations, NGOs, and other groups supported Shayara Bano since this practice was unconstitutional and was infringing fundamental rights to women. There are many principles and fundamental rights in the Holy Quran as well but it depends on the interpretations and the perception that what are we taught since the childhood and how we want to mold ourselves. We will have a deep look into the case and see how did Shayara Bano came out of the hole and appealed in the Supreme Court for the betterment of the women and children for future.


Citations: Shayara Bano v. Union of India AIR [2017] 9 SCC 1


Parties Involved:

Petitioner: Shayara Bano.

Respondent: Union of India, AIMPLB, Ministry of Women & Child Development, Ministry of Minority Affairs, Ministry of Law & Justice, NCW, Rizwan Ahmad (husband).

Intervenor: Jamait-Ul-E-Hind, Jamiat Ulama-i-Hind, National Awareness Security Forum, Bhartiya Muslim Mahila Andolan, Zakia Soman, Centre for Study of Society & Secularism.


Lawyers Involved:

Petitioner: Amit Chadha, Salman Khurshid (Amicus Curiae).

Respondent: Mukul Rohatgi, Kapil Sibal, Manoj Goel.

Intervenors: V.V. Giri, Anand Grover, Raju Ramachandran, Indira Jaising, Mohammad Arif Khan, Ram Jethmalani, Farah Faiz, Nithya Ramakrishnan.


Jurisdiction:

  • Jammu & Kashmir High Court.

  • Supreme Court of India.



Bench:

Justice J.S. Khehar, Justice S.A. Nazeer, Justice R.F. Niraman, Justice U. Lalit, Justice K.M. Joseph.


Facts:

Shayara Bano & Rizwan Ahmed spent a married life together for 15 years. In 2016, Rizwan Ahmed gave divorce to Shayara Bano through instantaneous divorce also called as triple talaq i.e., talaq-e-biddat. A Writ Petition by Shayara was filed against Rizwan in the Supreme Court seeking the three customary performs- Talaq-e-biddat, Polygamy, and Nikah halala to be held unlawful as they violate Article 14, 15, 21 & 25 of the Indian Constitution. Talaq-e-biddat is a practice under Muslim Law that authorizes a man to divorce her wife instantly in one sitting merely by saying “Talaq” three times. Nikah halala is a process when a woman needs to marry her ex-husband again then she will have to marry another man and get divorced by him to perform the marriage again. Polygamy, a concept that gives enough freedom to a Muslim man to have more than one wife. In February 2017, Supreme Court Asked Shayara Bano, other Muslim rights organizations, and all other Muslim private law boards to give a written submission on the issues of talaq-e-biddat, nikah halala, and polygamy. Shayara Bano and all other Muslim personal law boards and Muslim women’s rights organizations shared a common view and thoughts alongside Shayara Bano. On the other hand, AIMPLB argued that uncodified Muslim laws are not a part of the subject of the constitution or judiciary and their rights are enshrined under Article 25 of the Indian Constitution further saying that those are important customs of the Muslim Laws. The Supreme Court approved Shayara Bano's appeal and convened a five-judge panel on March 30, 2017. The first hearing took place on May 11, 2017, and the last hearing took place on August 22, 2017.




Issues:

1. Is the practise of talaq-e-biddat (instant divorce) a fundamental aspect of Islam?

2. Does the practise of triple talaq infringe on any basic rights?


Contentions:

Petitioner: Senior Advocate Mr. Amit Chadha started by saying that the instantaneous talaq that is being practiced in the name of Quran and Islamism is no concept given under them and there is a draconian authority given to these Muslim men to instantly divorce the wife and marry anyone just merely by uttering the word “Talaq” three times. This is the violation of the Article 14 & 15 of the Indian Constitution. At the conclusion, he said that if the triple talaq is put down, then most of the Muslim un-codified laws will automatically be stopped and the dissolution of the marriages will be done by the Muslim Marriage Act, 1939 by the entire community irrespective of gender.


Respondent: Mr. Kapil Sibal stated that the Shariat Act of 1937 does not codify any Muslim personal law and that some people may believe that such rules are irrelevant. Instead, uncodified personal laws were drafted with the goal of overcoming gender inequality in inheritance. He further said that personal laws are subjected to judicial reviews and legislation can change it to make a new law out of it. He then cited Article 25 clause 2 of the Indian Constitution that gives the freedom of the right to practice religious believes. Then at the debate of constituent assembly, personal laws were kept out of the Constitution as given under Article 13 of the Constitution that defines law and rejects the inclusion of the personal laws. Ended stating that Muslim women are not discriminated against with the concept of triple talaq and may even get benefits by filing for compensation, other relief and other alike options.


Holdings:

On August 26, 2017, a five-judge bench of the Supreme Court issued a ruling on triple talaq, declaring the practise unlawful in a 3:2 ratio and ordering legislators to enact specific rules for individuals who continue to practise it, as well as a specific punishment to be prescribed under the law.During the judgment, one of the judges said that the practice of triple talaq is arbitrary in nature and violated the fundamental rights of Muslim women. Another judge stated that triple talaq is against the Quran, and what is evil in the Quran has to be terrible in Shariat Law, thus what is bad in theology is also bad in law. Even Justice Khehar and Justice Abdul Nazeer were opposed to the verdict, but when it came to gender discrimination, they discussed legislation to take further steps and develop specific laws to address the issue.


Personal Opinion:

I agree with all the, judgments, opinions, and judiciary reviews of all the judges. However, polygamy and nikah halala has gone unheard throughout the case. The judges and lawyers had tilted towards the triple talaq so much that the other two were ignored. The Hon'ble Supreme Court must also consider the fact that nikah halala and polygamy are the larger issues in the current scenario since the former also violated the fundamental rights of the woman that if she wants to remarry the ex-husband, why would anyone want to marry another man so that she will get to marry ex-husband. While the latter was also a gross example that it might be a reason for HIV and other sex-related diseases and what example would it create to the world if one sees Islam as a man living with 4 wives. Polygamy is often seen as a social issue among the people as it is a violation of the fundamental rights against the women suffering from it. It only grows population and make it harder for the government to serve each of them. The Holy Quran puts forth the issues and protects the fundamental rights of the women and children also they are safe for the women and children who come from vulnerable sections of the society. Researchers have shown their interest in the topic and found out that domestic violence is the result for polygamy in most of the cases. By looking up to the elders of the house practicing or say committing polygamy, there is a very gross effect on the bringing up of the children. Polygamy, a threat to every individual, has to be stopped for good.




About the author Jasbir Singh, a law student from Jagran University, Bhopal - India.