Triple Talaq – Case brief

The present case study is written by Syeda Khizra Rizvi, 5th year BBA LLB student from Indian Institute of Legal Studies,  West Bengal during her internship at LeDroit India.

                                         SHAYARA BANO V. UNION OF INDIA

JUDGES: ROHINTON NARIMAN, U. U. LALIT, KURIAN JOSEPH, JADGISH SINGH KHEHAR, ABDUL NAZEER

CASE-NUMBER

WP (C) 118/2016

CASE CRUX

On 22nd August, 2017, Indian Supreme Court,Constitution Bench  declared practice of instantaneous Triple Talaq as unconstitutional.

BACKGROUND

Shayara Bano who was married to Rizwan Ahmed for 15 years. In 2016, her husband divorced her through instantaneous triple talaq i.e. talaq -e biddat. Shayara Bano moves to the Supreme Court and filed a Writ Petition asking three practices

  • talaq-e-biddat,
  • polygamy,
  • nikah-halala

Unconstitutional as they are violative of  Articles 14, 15, 21, 25 of the Constitution of India.

Talaq-e- bidat is a practise under muslim law which gives right to  a man to divorce his wife by uttering ‘talaq’ three times in one sitting without the consent of his wife. Nikah Halala is a practise under shariat law that a divorced woman who is willing to remarry her husband would have to marry another man and obtain a divorce, from her second husband before going back to her first husband and polygamy is a practice which allows Muslim men to have more than one wife and they can have maximum four wife at a time.

On 16th February 2017, the appex Court asked  the Union of India, various women’ rights bodies, the All India Muslim Personal Law Board (AIMPLB) and Shayara Bano, to give written submissions on the said three issues. The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) inclined in favor of Ms Bano’s plea that these practices must be set unconstitutional. The AIMPLB has put forward the statement  that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution.

After accepting the petition of Shayara Bano’s, 5 judge Constitutional bench was formed by the Apex Court formed on 30th March 2017. The first hearing was held on 11th May 2017. On 22nd August 2017, by a 3:2 ratio, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring  the practice as unconstitutional.

ISSUES

  1. The validity of triple talaq.
  2. Whether Triple Talaq is an essential religious practice?

JUDGEMENT

The Supreme Court laid down this judgement on by a 3:2 ratio. Justice Nariman wrote most of the judgement for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the majority opinion Chief Justice Kehar wrote the minority opinion for himself and on behalf of Justice Nazeer. While minority bench found this practice to be an essential religious practice but the majority upon lengthy discussion concluded that Triple Talaq is not an essential religious practice. Under the provision of Article 25 of the Constitution the state cannot take away the essential religious practice of a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down under article 25. Therefore, the whole issue was based on whether the practice is an essential religious practice of Islam.

Therefore, as per majority it was held that the Triple Talaq or Talaq-e-biddatis not held protected by the exception laid down in Article 25 i.e. the court found the said practice as a nonessential element of Islamic religion. The court justified its point of view in the sense that although it is practiced by the Hanafi School, but it is considered sinful under it also. Triple Talaqis against the ground tenets of Quran and whatever is against Quoranis contrary to Shariat therefore, what is ill theoretically cannot be good in law. The majority bench relied on its earlier decision Shamim Ara which held that this practice of Triple Talaq is against both theology and law and just for a ground that it is followed by many people since long it cannot be validated. Therefore, such practice was declared unconstitutional and set aside.

Article 25 provides the right of every person to freely practice and propagate any religion of choice and such practice is only restricted under the context of the following exceptions:

  • Health
  • Morality
  • Public Order
  • Other Provisions of Part III of the Constitution

Although the said practice has no relevance to some of the exceptions, but the said practice is surely against other provisions of Part III namely Article 14. The said practice is in violation of the Fundamental Right of equality as it is against the rights of women as they are having no consent in the declaration of divorce unlike in other religions. Justice  Nariman & Lalit JJ. held that the impugned practice is a weapon by which marital tie can be broken on whims of Husband without any try of reconciliation to save it. Therefore, this form of Talaq, is in violation of Article 14 and liable to be struck down by the courts.

Further the question arise that What is an essential religious practice? It depends on the background or history and tenets of the religion. It is not necessary that if some practice is not prohibited mean that such practice is an essential religious practice. Essential religious practices are those practices on which the religion is founded upon. Essential religious are those which are fundamental to the propagation and profession of the religion as by taking away of such practice causes a substantial change in the religion then such practice can be termed as ‘an essential religious practice’ and only such practices are protected in Article 25(1) of the Constitution. The infringement of religious practices through state intervention will result in violation in rights mentioned in Article 25(1) & not with the infringement of circumstantial and non-essential practices. The fact that majority of Islamic countries have strike off with the said practice also reflects that the said practice is not one which will be called as an essential religious practice.

However, Justice Khehar, writing the minority opinioned that such practice is an essential religious element of Islam. The Minority bench of the court justified this stance on the ground that this practice is followed by a large population of people following Islam. Since this practice has the sanction of religious denomination and followed by a majority of Muslim population, the said practice cannot declare to be constitutional and an essential religious practice. As far as the exceptions mentioned in Article 25(1) of the Constitution, Justice kehar opinioned that the impugned practice is not violative of any of these exceptions since Shariat or Muslim Personal law is not based on any state legislative action and personal law privales over the law of land.

CRITICAL ANALYSIS OF THE JUDGEMENT

The judgement is widely appreciated throughout the jurisdictions as a protection shield against the social evil such as this practice promoted and also the majority bench on the face of it criticized the government for not further making relevant laws to prohibit such a regressive practice. This act allowed the husband to end the marital tie on his whims and fancies without the consent of his wife, thereby making the life of the women hell. Since many years Muslim women were  demanding the protection from such a regressive and bad practice and finally it was the apex court which gave them the appropriate remedy.

Justice Nariman at the outset stated that as soon as he would find any violation of Fundamental Right, he will strike down the practice. There arises no question that the said practice was an essential religious practice or not since majority of Islamic nations have already banned the practice & in India only Hanafi School practices it. Therefore, it can be said that the practice is not one of religious importance. The majority finding the said practice was in violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the regressive act with the majority of 3:2 ratio. The bench observed that merely because the practice is widespread and continuing since long it cannot be held as an essential religious practice. Hinduism also after finding Sati Pratha regressive removed it from the religion as Sati pratha was also practiced widespread and practiced since time immemorial. Therefore, the court held a very correct judgement.

One does not need to dwell down into the details and should understand that if Triple Talaqhad been a important religious practice of Islam then in that case it would not have been banned in almost all Islamic nations and in addition it was also observed that the said practice was only practiced in Hanafi School who itself considers it sinful.

The minority judgement given on behalf of himself by CJ Kehar and Justice Nazeer was flawed in every aspect. The hon’ble judges should have considered that fact that:

  1. An essential religious practice would not have been banned by majority of the Islamic nations.
  2. An essential religious practice cannot be stated as sinful or I’ll practice by the religion itself.
  3. merely because one community of the religion follows the practice and that is since long, then that cannot be ground for an essential religious.

The whole reasoning of the minority bench was unfair, irrational and unjust. If the two minority judges have also ruled in the favour of majority the impact would be altogether different.

REFERENCES:

The present case study is written by Syeda Khizra Rizvi, 5th year BBA LLB student from Indian Institute of Legal Studies,  West Bengal during her internship at LeDroit India.

                                         SHAYARA BANO V. UNION OF INDIA

JUDGES: ROHINTON NARIMAN, U. U. LALIT, KURIAN JOSEPH, JADGISH SINGH KHEHAR, ABDUL NAZEER

CASE-NUMBER

WP (C) 118/2016

CASE CRUX

On 22nd August, 2017, Indian Supreme Court,Constitution Bench  declared practice of instantaneous Triple Talaq as unconstitutional.

BACKGROUND

Shayara Bano who was married to Rizwan Ahmed for 15 years. In 2016, her husband divorced her through instantaneous triple talaq i.e. talaq -e biddat. Shayara Bano moves to the Supreme Court and filed a Writ Petition asking three practices

  • talaq-e-biddat,
  • polygamy,
  • nikah-halala

Unconstitutional as they are violative of  Articles 14, 15, 21, 25 of the Constitution of India.

Talaq-e- bidat is a practise under muslim law which gives right to  a man to divorce his wife by uttering ‘talaq’ three times in one sitting without the consent of his wife. Nikah Halala is a practise under shariat law that a divorced woman who is willing to remarry her husband would have to marry another man and obtain a divorce, from her second husband before going back to her first husband and polygamy is a practice which allows Muslim men to have more than one wife and they can have maximum four wife at a time.

On 16th February 2017, the appex Court asked  the Union of India, various women’ rights bodies, the All India Muslim Personal Law Board (AIMPLB) and Shayara Bano, to give written submissions on the said three issues. The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) inclined in favor of Ms Bano’s plea that these practices must be set unconstitutional. The AIMPLB has put forward the statement  that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution.

After accepting the petition of Shayara Bano’s, 5 judge Constitutional bench was formed by the Apex Court formed on 30th March 2017. The first hearing was held on 11th May 2017. On 22nd August 2017, by a 3:2 ratio, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring  the practice as unconstitutional.

ISSUES

  1. The validity of triple talaq.
  2. Whether Triple Talaq is an essential religious practice?

JUDGEMENT

The Supreme Court laid down this judgement on by a 3:2 ratio. Justice Nariman wrote most of the judgement for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the majority opinion Chief Justice Kehar wrote the minority opinion for himself and on behalf of Justice Nazeer. While minority bench found this practice to be an essential religious practice but the majority upon lengthy discussion concluded that Triple Talaq is not an essential religious practice. Under the provision of Article 25 of the Constitution the state cannot take away the essential religious practice of a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down under article 25. Therefore, the whole issue was based on whether the practice is an essential religious practice of Islam.

Therefore, as per majority it was held that the Triple Talaq or Talaq-e-biddatis not held protected by the exception laid down in Article 25 i.e. the court found the said practice as a nonessential element of Islamic religion. The court justified its point of view in the sense that although it is practiced by the Hanafi School, but it is considered sinful under it also. Triple Talaqis against the ground tenets of Quran and whatever is against Quoranis contrary to Shariat therefore, what is ill theoretically cannot be good in law. The majority bench relied on its earlier decision Shamim Ara which held that this practice of Triple Talaq is against both theology and law and just for a ground that it is followed by many people since long it cannot be validated. Therefore, such practice was declared unconstitutional and set aside.

Article 25 provides the right of every person to freely practice and propagate any religion of choice and such practice is only restricted under the context of the following exceptions:

  • Health
  • Morality
  • Public Order
  • Other Provisions of Part III of the Constitution

Although the said practice has no relevance to some of the exceptions, but the said practice is surely against other provisions of Part III namely Article 14. The said practice is in violation of the Fundamental Right of equality as it is against the rights of women as they are having no consent in the declaration of divorce unlike in other religions. Justice  Nariman & Lalit JJ. held that the impugned practice is a weapon by which marital tie can be broken on whims of Husband without any try of reconciliation to save it. Therefore, this form of Talaq, is in violation of Article 14 and liable to be struck down by the courts.

Further the question arise that What is an essential religious practice? It depends on the background or history and tenets of the religion. It is not necessary that if some practice is not prohibited mean that such practice is an essential religious practice. Essential religious practices are those practices on which the religion is founded upon. Essential religious are those which are fundamental to the propagation and profession of the religion as by taking away of such practice causes a substantial change in the religion then such practice can be termed as ‘an essential religious practice’ and only such practices are protected in Article 25(1) of the Constitution. The infringement of religious practices through state intervention will result in violation in rights mentioned in Article 25(1) & not with the infringement of circumstantial and non-essential practices. The fact that majority of Islamic countries have strike off with the said practice also reflects that the said practice is not one which will be called as an essential religious practice.

However, Justice Khehar, writing the minority opinioned that such practice is an essential religious element of Islam. The Minority bench of the court justified this stance on the ground that this practice is followed by a large population of people following Islam. Since this practice has the sanction of religious denomination and followed by a majority of Muslim population, the said practice cannot declare to be constitutional and an essential religious practice. As far as the exceptions mentioned in Article 25(1) of the Constitution, Justice kehar opinioned that the impugned practice is not violative of any of these exceptions since Shariat or Muslim Personal law is not based on any state legislative action and personal law privales over the law of land.

CRITICAL ANALYSIS OF THE JUDGEMENT

The judgement is widely appreciated throughout the jurisdictions as a protection shield against the social evil such as this practice promoted and also the majority bench on the face of it criticized the government for not further making relevant laws to prohibit such a regressive practice. This act allowed the husband to end the marital tie on his whims and fancies without the consent of his wife, thereby making the life of the women hell. Since many years Muslim women were  demanding the protection from such a regressive and bad practice and finally it was the apex court which gave them the appropriate remedy.

Justice Nariman at the outset stated that as soon as he would find any violation of Fundamental Right, he will strike down the practice. There arises no question that the said practice was an essential religious practice or not since majority of Islamic nations have already banned the practice & in India only Hanafi School practices it. Therefore, it can be said that the practice is not one of religious importance. The majority finding the said practice was in violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the regressive act with the majority of 3:2 ratio. The bench observed that merely because the practice is widespread and continuing since long it cannot be held as an essential religious practice. Hinduism also after finding Sati Pratha regressive removed it from the religion as Sati pratha was also practiced widespread and practiced since time immemorial. Therefore, the court held a very correct judgement.

One does not need to dwell down into the details and should understand that if Triple Talaqhad been a important religious practice of Islam then in that case it would not have been banned in almost all Islamic nations and in addition it was also observed that the said practice was only practiced in Hanafi School who itself considers it sinful.

The minority judgement given on behalf of himself by CJ Kehar and Justice Nazeer was flawed in every aspect. The hon’ble judges should have considered that fact that:

  1. An essential religious practice would not have been banned by majority of the Islamic nations.
  2. An essential religious practice cannot be stated as sinful or I’ll practice by the religion itself.
  3. merely because one community of the religion follows the practice and that is since long, then that cannot be ground for an essential religious.

The whole reasoning of the minority bench was unfair, irrational and unjust. If the two minority judges have also ruled in the favour of majority the impact would be altogether different.

REFERENCES:

JUDGES: ROHINTON NARIMAN, U. U. LALIT, KURIAN JOSEPH, JADGISH SINGH KHEHAR, ABDUL NAZEER

CASE-NUMBER

WP (C) 118/2016

CASE CRUX

On 22nd August, 2017, Indian Supreme Court,Constitution Bench  declared practice of instantaneous Triple Talaq as unconstitutional.

BACKGROUND

Shayara Bano who was married to Rizwan Ahmed for 15 years. In 2016, her husband divorced her through instantaneous triple talaq i.e. talaq -e biddat. Shayara Bano moves to the Supreme Court and filed a Writ Petition asking three practices

  • talaq-e-biddat,
  • polygamy,
  • nikah-halala

Unconstitutional as they are violative of  Articles 14, 15, 21, 25 of the Constitution of India.

Talaq-e- bidat is a practise under muslim law which gives right to  a man to divorce his wife by uttering ‘talaq’ three times in one sitting without the consent of his wife. Nikah Halala is a practise under shariat law that a divorced woman who is willing to remarry her husband would have to marry another man and obtain a divorce, from her second husband before going back to her first husband and polygamy is a practice which allows Muslim men to have more than one wife and they can have maximum four wife at a time.

On 16th February 2017, the appex Court asked  the Union of India, various women’ rights bodies, the All India Muslim Personal Law Board (AIMPLB) and Shayara Bano, to give written submissions on the said three issues. The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) inclined in favor of Ms Bano’s plea that these practices must be set unconstitutional. The AIMPLB has put forward the statement  that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution.

After accepting the petition of Shayara Bano’s, 5 judge Constitutional bench was formed by the Apex Court formed on 30th March 2017. The first hearing was held on 11th May 2017. On 22nd August 2017, by a 3:2 ratio, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring  the practice as unconstitutional.

ISSUES

  1. The validity of triple talaq.
  2. Whether Triple Talaq is an essential religious practice?

JUDGEMENT

The Supreme Court laid down this judgement on by a 3:2 ratio. Justice Nariman wrote most of the judgement for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the majority opinion Chief Justice Kehar wrote the minority opinion for himself and on behalf of Justice Nazeer. While minority bench found this practice to be an essential religious practice but the majority upon lengthy discussion concluded that Triple Talaq is not an essential religious practice. Under the provision of Article 25 of the Constitution the state cannot take away the essential religious practice of a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down under article 25. Therefore, the whole issue was based on whether the practice is an essential religious practice of Islam.

Therefore, as per majority it was held that the Triple Talaq or Talaq-e-biddatis not held protected by the exception laid down in Article 25 i.e. the court found the said practice as a nonessential element of Islamic religion. The court justified its point of view in the sense that although it is practiced by the Hanafi School, but it is considered sinful under it also. Triple Talaqis against the ground tenets of Quran and whatever is against Quoranis contrary to Shariat therefore, what is ill theoretically cannot be good in law. The majority bench relied on its earlier decision Shamim Ara which held that this practice of Triple Talaq is against both theology and law and just for a ground that it is followed by many people since long it cannot be validated. Therefore, such practice was declared unconstitutional and set aside.

Article 25 provides the right of every person to freely practice and propagate any religion of choice and such practice is only restricted under the context of the following exceptions:

  • Health
  • Morality
  • Public Order
  • Other Provisions of Part III of the Constitution

Although the said practice has no relevance to some of the exceptions, but the said practice is surely against other provisions of Part III namely Article 14. The said practice is in violation of the Fundamental Right of equality as it is against the rights of women as they are having no consent in the declaration of divorce unlike in other religions. Justice  Nariman & Lalit JJ. held that the impugned practice is a weapon by which marital tie can be broken on whims of Husband without any try of reconciliation to save it. Therefore, this form of Talaq, is in violation of Article 14 and liable to be struck down by the courts.

Further the question arise that What is an essential religious practice? It depends on the background or history and tenets of the religion. It is not necessary that if some practice is not prohibited mean that such practice is an essential religious practice. Essential religious practices are those practices on which the religion is founded upon. Essential religious are those which are fundamental to the propagation and profession of the religion as by taking away of such practice causes a substantial change in the religion then such practice can be termed as ‘an essential religious practice’ and only such practices are protected in Article 25(1) of the Constitution. The infringement of religious practices through state intervention will result in violation in rights mentioned in Article 25(1) & not with the infringement of circumstantial and non-essential practices. The fact that majority of Islamic countries have strike off with the said practice also reflects that the said practice is not one which will be called as an essential religious practice.

However, Justice Khehar, writing the minority opinioned that such practice is an essential religious element of Islam. The Minority bench of the court justified this stance on the ground that this practice is followed by a large population of people following Islam. Since this practice has the sanction of religious denomination and followed by a majority of Muslim population, the said practice cannot declare to be constitutional and an essential religious practice. As far as the exceptions mentioned in Article 25(1) of the Constitution, Justice kehar opinioned that the impugned practice is not violative of any of these exceptions since Shariat or Muslim Personal law is not based on any state legislative action and personal law privales over the law of land.

CRITICAL ANALYSIS OF THE JUDGEMENT

The judgement is widely appreciated throughout the jurisdictions as a protection shield against the social evil such as this practice promoted and also the majority bench on the face of it criticized the government for not further making relevant laws to prohibit such a regressive practice. This act allowed the husband to end the marital tie on his whims and fancies without the consent of his wife, thereby making the life of the women hell. Since many years Muslim women were  demanding the protection from such a regressive and bad practice and finally it was the apex court which gave them the appropriate remedy.

Justice Nariman at the outset stated that as soon as he would find any violation of Fundamental Right, he will strike down the practice. There arises no question that the said practice was an essential religious practice or not since majority of Islamic nations have already banned the practice & in India only Hanafi School practices it. Therefore, it can be said that the practice is not one of religious importance. The majority finding the said practice was in violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the regressive act with the majority of 3:2 ratio. The bench observed that merely because the practice is widespread and continuing since long it cannot be held as an essential religious practice. Hinduism also after finding Sati Pratha regressive removed it from the religion as Sati pratha was also practiced widespread and practiced since time immemorial. Therefore, the court held a very correct judgement.

One does not need to dwell down into the details and should understand that if Triple Talaqhad been a important religious practice of Islam then in that case it would not have been banned in almost all Islamic nations and in addition it was also observed that the said practice was only practiced in Hanafi School who itself considers it sinful.

The minority judgement given on behalf of himself by CJ Kehar and Justice Nazeer was flawed in every aspect. The hon’ble judges should have considered that fact that:

  1. An essential religious practice would not have been banned by majority of the Islamic nations.
  2. An essential religious practice cannot be stated as sinful or I’ll practice by the religion itself.
  3. merely because one community of the religion follows the practice and that is since long, then that cannot be ground for an essential religious.

The whole reasoning of the minority bench was unfair, irrational and unjust. If the two minority judges have also ruled in the favour of majority the impact would be altogether different.

REFERENCES:

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