Introduction

In the general elections of 1984, Indian Congress Party had won absolute majority in the Indian parliament. Congress headed by the Prime Minister Rajiv Gandhi enacted the Muslim Women (Protection of Rights on divorce) Act 1986 that nullified the Supreme Court’s judgment in the Shah Bano judgment. The Supreme Court held that the act allowed maintenance to a divorced woman only during the period of iddat or till 90 days after the divorce, according to the provision of Islamic law.

Triple talaq is a 1400 year- old practice among Sunni Muslims. It is manifestly arbitrary and allows a man to break down marriage whimsically and capriciously. Muslim family affairs in India are governed by the Muslim Personal Law (shariat) Application Act, 1937. It was one of the first acts to be passed after the Government of India Acts, 1935 became operational.

Owing to these historical factors, the checks that have been placed on the husband’s unilateral rights of divorce by governments of other countries and the prohibition of triple talaq were not implemented in India.

The Muslim Law classifies dissolution of marriage into the following categories i.e.

A. By the Death of the Husband

B. By the Act of the Parties: The act is categorised into following:

I. By the Husband

●      Talak

●      Talak-us-sunnat   a. Ahsan   b. Hasan

●      Ila (Vow of continence)

●      Zihar (Injurious Comparison)

 

II. By the wife: - Talak-e-Tafwid (Delegated Divorce)

III. By Mutual Consent:

●      Khula (Redemption)

●      Mubarat (Mutual Freeing)

IV. By Judicial Process: -

●      Lian (Mutual Imprecation)

●      Faskh (Judicial Annulment)

 

All the above stated types of Divorce are valid in Islamic law however; it is Talak-ul-Biddat which is the issue of controversy. This is known as Trilpe Talaq.

What is Talaq-e-biddat?

  • If a man belonging to the religion of Islam pronounces talaq thrice either orally, in written or recently electronic form to his wife, then the divorce is considered immediate and irrevocable.
  • The only way to reconcile the marriage is through the practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month iddat period and return to her husband.

Facts of the Case 

Muslim Woman is deprived of good education and self dependency like the rest of the woman. Education is denied to them and they are not allowed to work either. Hence post divorce the need for maintenance only becomes greater for the Muslim community.  

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, her husband divorced her through talaq–e-bidat (triple talaq).  Ms Bano argued that three practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can remarry her after triple talaq) –were unconstitutional as she has to challenge the Articles 14, 15, 21, 25 of the Constitution.

1. Issue:-

1.     The validity of triple talaq. 

2.     Whether Triple Talaq is an essential religious practice?

3.     Is section 125 of the Code of Criminal Procedure, 1973 applicable?

 2. Rules/laws:- 

  1. Article 14:- equality before the law
  2. Article 15(1):- prohibition of discrimination including on the ground of gender
  3. Article 21:- right to life and 21(a) right to education
  4. Article 25:- freedom of religion
  5. Section 125 of CrPC: - Order for maintenance of wives, children and parents. 

3. Application of Laws/Rules in the facts :

1. Article 14

The petitioner wanted equality before the law, because she used to think that women are equal to men and demanded equal status in the society. Under the Islamic law does not mention any kind of equal status in the society. Under the article 14 states that the state shall not deny to any person equality before the laws within the territory of India.

2. Article 15(1)

Petitioner said that religion is equal for man and woman. She pointed out that the Islamic law creates the discrimination ground of religion. Under the article 15 state that prohibition of discrimination on ground of religion, state shall not create the any discrimination against the religion. But in this case discrimination was created by the Islamic law and also his husband.

3. Article 21 and 21A

Article 21 states that every person has the right to protection of life and personal liberty. It means that Shayara Bano’s husband has a duty to protect the family’s life including the wife and children and provides the basic necessity to the family to survive in the world i.e. maintenance. But the Shayara Bano’s husband does not agree to give any kind of maintenance to the family.

Article 21A states that every person has the right to education. Shayara Bano’s husband refused to provide the education to his children. The article states that the state shall provide free and compulsory education to all children of the age of six to fourteen year. It means that a father must provide education to his children.     

4. Article 25

The Petitioner was seeking for the freedom of practice of religion, because in the Islamic law only man can give divorce to wife by saying the word “talaq” twice. Article 25 was the most changeable article in this case.

5. Section 125 CrPC

She wanted the maintenance provided under section 125 of CrPC to the husband. But the husband denied the payment of the maintenance to the wife and children in this case. Section125 states that order for the maintenance for wives, children and parents. It means that the husband must pay the money and his wife is not able to maintain herself.

Conclusion

The Laws applied to the facts of the case clearly shows that the Triple Talaq do not stand in line with Faundamental Rights and basic right of maintenance for women, a muslim woman being an indispensible part of Indian society is not entitled to suffer at the hands of any personal law’s restrictions and patriarcal ideology. Being a rightful citizen Shayara Bano made her case a pertinent turn into mass consciousness. This case turned out to be the most important case for empowerment of Muslim women. The guardian of the Constitution of India which is the Supreme Court, gave a momentous judgment - and granted maintenance to Shayara Bano and her children.  But this judgment and Muslim Women (Protection of Rights on Marriage) Act, 2019 which later came up as a combined result of this judgment and plight of many such victims of he menace behind Triple Talaq is seen as a threat to the Islamic law (Shariah) as it is believed by many Islamic scholars as averse to norms set by their long prevalent personal laws.


About the Author: This Case Brief is prepared by Mr. Abhay Kumar, law student at Lloyd Law College and was an intern at MyLawman. She can be reached at abhaykr9621@gmail.com.  

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