Constitutional Law

Shayara Bano v. Union of India

AIR 2017 SC 4609; (2017) 9 SCC 1

Citation: AIR 2017 SC 4609; (2017) 9 SCC 1
Court: Supreme Court of India
Date: 22 August 2017
Bench: J.S. Khehar C.J.; Kurian Joseph; R.F. Nariman; U.U. Lalit; S. Abdul Nazeer

Facts

Shayara Bano’s husband ended their marriage through talaq-e-biddat, commonly called instant triple talaq.
Under the practice, a Muslim husband could pronounce “talaq” three times in one sitting, producing an immediate and irrevocable divorce.
Shayara Bano challenged the practice as violating equality, dignity and personal liberty.
Several Muslim women’s organisations supported the challenge.
The All India Muslim Personal Law Board argued that triple talaq formed part of Muslim personal law and was protected by Article 25.
A five-judge Bench representing different religious backgrounds considered whether courts could invalidate the practice.

Whether instant triple talaq was protected as an essential religious practice.
Whether it could be examined under Article 13.
Whether the practice violated Article 14 by granting unilateral and arbitrary power to the husband.
Whether reform should be left entirely to Parliament.

Personal-law practices receiving statutory recognition may be examined under Article 13.
A law is manifestly arbitrary when it operates irrationally, capriciously or without an adequate determining principle.
Article 25 protects essential religious practices but does not necessarily protect a practice merely because it has historically been followed.
A religious practice contrary to the fundamental sources of the faith may fail the essential-practice test.

Justices Nariman and Lalit
They held that the Muslim Personal Law (Shariat) Application Act, 1937 gave statutory recognition to Muslim personal law.
Triple talaq was therefore subject to fundamental-rights review.
The husband could terminate the marriage instantly without:
providing reasons;
attempting reconciliation;
hearing the wife; or
following any objective standard.
This uncontrolled power was manifestly arbitrary and violated Article 14.
Justice Kurian Joseph
He reached the same final result through religious doctrine.
The Quran contemplated reconciliation and a structured process before divorce.
Instant triple talaq was considered sinful and irregular within Islam.
A practice contrary to the Quran could not be treated as an essential part of Muslim faith.
He therefore held that triple talaq was not legally valid.
Dissent of Chief Justice Khehar and Justice Nazeer
They considered triple talaq part of Hanafi personal law followed for centuries.
In their view, uncodified personal law could not be tested under Article 13 merely because the practice was undesirable.
They would have protected it under Article 25 while suspending its use for six months to permit Parliament to legislate.

By a 3:2 majority, instant triple talaq was declared invalid.
Two judges struck it down as manifestly arbitrary under Article 14.
Justice Kurian Joseph invalidated it as contrary to the Quran and therefore not protected religious law.