CONTACT US

084594-00000

About Us  :  Online Enquiry

Download

Triple Talaq Judgement (2016)

Triple Talaq Judgement (2016)

Introduction

  • Shayara Bano, a 35-year-old woman, challenged the practice in 2016, a year after her husband of 15 years divorced her via triple talaq.
  • Petitions of four other Muslim women – Afreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri – were tagged with Bano’s plea.
  • Some Muslim groups see the issue as a matter of religious right while others, including the Centre, termed it unconstitutional.

Background

  • Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq -e bidat). She filed a Writ Petition in the Supreme Court asking it to hold three practices – talaq-e-bidat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution.
  • On 16th February 2017, the Court asked Shayara Bano, the Union of India, various women’ rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy.
  • The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported Ms Bano’s plea that these practices are unconstitutional.
  • The AIMPLB has argued 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 Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional bench on 30th March 2017. The first hearing was on 11th May 2017.
  • On 22nd August 2017, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring that the practise was unconstitutional by a 3:2 majority.

What is Talaq-e- bidat , Nikah Halala and Polygamy?

  • Talaq-e- bidat is a practise which gives a man the right to divorce his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent.
  • Nikah Halala is a practise where a divorced woman who wants to remarry her husband would have to marry and obtain a divorce, from a second husband before she can go back to her first husband.
  • Polygamy is a practice which allows Muslim men to have more than one wife.

Issue  

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

Judgement

  • The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the practice of Triple Talaq unconstitutional.
  • Under 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 u/a 25. Therefore, the whole issue was whether or not the practice is an essential religious practice of Islam.
  • Therefore, as per majority it was held that the Triple Talaq is not protected by the exception laid down in Article 25 i.e. the court found the said practice not an essential 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 in it. Triple Talaq is against the basic tenets of Quran and whatever is against Quran is contrary to Shariat therefore, what is bad in theology 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 because it is followed by a large number of people it cannot be validated.
  • Therefore, such practice is declared unconstitutional and set aside.

Conclusion | Triple Talaq Judgement (2016)

  • After so many abortive attempts finally, a petition filed by Shayara Bano, Ishrat Jahan, Aafreen Rehman, Gulshan Parveen was successful in bringing justice to many unheard voices of India.
  • The majority decision restored the trust that the common people possesses for the institution of Judiciary.
  • The judgment proved that the democratic notions such as equality, liberty etc. would not bend down against any philosophy even if it is a religion. The courts finally brought justice to those women who have been a victim of Triple Talaq.
  • Men after enjoying and extracting pleasure out of women used to abandon them easily by the virtue of Triple Talaq.
  • Now, after the pronouncement of the judgment the situation has changed and made such incidents impossible.
  • No husband can now abandon his wife by ending marital tie on his whims and fancies.
  • The court ensured that the ideas of equality especially gender equality is not a mere theoretical ideology.
  • However, the opinion of minority bench worries the nation. If the Chief Justice of India is giving primacy to practices such as Triple Talaq ignoring the widespread atrocities, then there is some serious rethink required by the Judges of the apex court.

 

 

 

 

Indian Polity

close-link

Send this to a friend