Facts of the Case
To go over the facts briefly, Shayara Bano( the petitioner ) is a woman survivor of domestic violence and dowry harassment had been unilaterally divorced through ITT. She filed a petition before the Supreme Court seeking a declaration that the practices of ITT, polygamy, and Nikah Halala in Muslim personal law were illegal, unconstitutional, and in violation of Articles 14 (equality before law), 15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience and religion) of the Indian Constitution. The Court, however, chose to examine the issue of ITT alone. The Union of India supported the petition. Among the others who intervened in this case, the All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind argued that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law and that the matter was in the domain of the legislature. The Bebaak Collective and the Centre for Study of Society and Secularism – two organizations working with Muslim women – supported the petition and urged the Court to declare that personal law was subject to the Fundamental Rights. Bharatiya Muslim Mahila Andolan and Majlis – also women’s rights organizations – argued that in view of previous decisions of the Court, the bench need not consider the question whether the constitutional validity of ITT, but should rather emphasize the existing legal remedies.
As has been pointed out by many commentators throughout the course of this case, ITT lacked legal validity even before this petition was filed, though it had not been declared “unconstitutional” by any court ever due to the religious influence and pressure in India. Since the 1980s, a number of high courts had held that for Talaq to be valid, it must be pronounced for a reasonable cause, and must be preceded by attempts at reconciliation facilitated by mediators representing both parties. On this view, though widely invoked by the freedom fighter husbands (P.s their own freedom) and authorized by the clerics, ITT was already illegal. The question that arose here was that whether a personal law like this can be scrutinized by the lens of the law of the land, our constitution?
The issue goes back to a 1951 Bombay High Court judgment in the case, State of Bombay v Narasu Appa Mali (1952), where a two-judge bench had sternly held that personal law was not covered by the phrase “laws in force” used by the Constitution in Article 13 to denote all those pre-constitutional enactments which were “in force” at the time of adopting the Constitution, and which were subject to the Fundamental Rights. The two judges held this because the source of personal law was the religion rather than the state. The foundations of this judgment have been criticised by eminent legal scholars like H.M. Seervai (2015) and A.M Bhattacharjee (2016). Several high court benches have also called for its reconsideration. The Supreme Court affirmed it in the 1980 judgment Sri Krishna Singh v Mathura Ahir (1980), then implicitly overturned it in the 1996 judgment C Masilamani Mudaliar and Others v The Idol of Swaminathaswaminathaswami Thirukoil (1997) and then upheld it again in the 1997 judgment Ahmedabad Women’s Action Group v Union of India (1997). Thus, Shayara Bano’s case was important not just for how the Court decided her immediate claims, but also because it offered an opportunity for a five-judge bench of the Supreme Court to clarify the constitutional status of personal law.
Now, there were 3 main views on this –
1. By Justice Khehar and Justice Nazeer - The two two-judge opinions in the Shayara case take diametrically opposite approaches to the question of constitutionality. They take the view that those parts of Muslim personal law on which the state has enacted a law – such as the Dissolution of Muslim Marriage Act, 1939 or the Muslim Women’s (Protection of Rights on Divorce) Act, 1986 – can be tested for compliance with the Fundamental Rights, but those parts that were uncodified cannot be.
2. Justice Nariman notes that ITT is an “irregular or heretical form of Talaq” since though lawful, it is considered to be incurring the wrath of God. For him, the arbitrariness of IIT, when seen through the lens of constitutional reasoning, its arbitrariness is thrown into sharper focus. The judge concludes:“…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.” (Shayara Bano v Union of India 2017: para 57)
3. Justice Joseph does not fully join either of the above positions, but follows a different path. He takes a middle path somewhat and agrees and disagrees with other judges of the bench on different points. On the question of the nature of the 1937 Act, he agrees with Justice Khehar and disagrees with Justice Nariman. Thus, though he agrees with Justice Nariman’s view of arbitrariness as an appropriate test for Article 14, he holds that the 1937 Act cannot be subjected to it. But he disagrees with Justice Khehar too. Justice Khehar held against determining the validity of ITT by referring to the Hadiths, as he felt that it was beyond the judicial role and expertise. Justice Joseph on the other hand is of the opinion that the 1937 Act, having declared Shariat to be the law applicable to Muslims, had essentially left it to the judges to find out what the Shariat said on an issue. Therefore, leaving the question of constitutionality aside, what he pursues in his opinion is:“...whether what is Quranically wrong can be legally right …. the simple question that needs to be answered in this case is only whether Triple Talaq has any legal sanctity.” (Shayara Bano v Union of India 2017: para 1).
In my view, the judgement has been confusing rather than conclusive as Tripple Tala has still not been rendered purely unconstitutional as it should have been. Yes, it has been said to be invalid but it still lacks proper execution and legal backing and could have been put in a better way. I support Justice Nariman here as he holds the right view regarding the triple Talaq and finds it totally against the fundamental laws bestowed on the citizens of India in our constitution. The Triple Talaq is a matter of religion, yes, but that does not mean and should not mean that it can stand obstructing the rights forwarded to us in our basic fundamental rights and in a country like India letting anything like this to continue is a shame for all and a degradation in the society. This is purely a social evil and has to be eradicated off the society completely to preserve the respect and integrity of Indian women. The illogical basis of law of religion cannot be left untouched by the hands of law just because it is a religion and the selfish Muslim husbands do not want their hands off the undue power given to them. However, the decision given and made to stand by the majority decision of J. Nariman, J. U.U Lalit and J. Kurien is a landmark decision and a step towards better society which I think is a big step towards development of India and I hope it will get better with time through stricter execution and support of the public.
