‘Triple Talaq Case’ or “Shayara Bano vs Union of India” gave India a landmark judgement which pronounced as the practice of Triple Talaq to be unconstitutional. The Triple Talaq judgement is regarded throughout the jurisdictions as a safeguard against our social evils. the Supreme Court of India held that abolished the regressive and immoral practice of instantaneous Triple Talaq.
Triple Talaq Case
Shayara Bano vs Union of India 2017
Facts of the Triple Talaq Case
This Case is famous by the name of The Triple Talaq Case. The petitioner named, Shayara Bano, had been married to Rizwan Ahmed (Husband), for 15 years. In he divorced her in 2016 through instant triple talaq (talaq -e biddat), i.e., means allows a man to divorce his wife by just saying the word “talaq” three times in in one row without his wife’s consent.
For the safeguard under Fundamental right, Petitioner (Shayara Bano) filed a Writ petition in the Apex Court pleading to declare three practices talaq-e-biddat, nikah-halala and polygamy as unconstitutional as they violate the fundamental rights of women enshrined in Articles 14, 15, 21, and 25 of our Constitution.
It is a divorced woman who wishes to remarry her husband must marry and get a divorce from a second husband before remarrying her first husband
However, the AIMPLB argued that un-codified Muslim personal law is not subject to constitutional judicial review, and that these are the essential Islamic practices protected under Article- (XXV) 25 of the Constitution.
Background of the Triple Talaq Case
As per the shariat in reliogion of Muslim, 3 ways by which a husband may divorce his wives/wife –
It is believed that Talaq-e-Ahsan and Talaq-e-Hasan are recognized by the Holy sacred writing however Talaq-e-Bidder could be a creation of the Ummayad Kings for his or her ill-intentions.
It is common and proper form of Talaq, Where husband shows divorce in one row – “I have dovorce thee” – during the timeline of tuhr ( When his wife is not menstruating) & he has to wait until the Iddat Period is over.
Iddat Period is called as for a woman who has been divorced by her man is usually 3 menstrual cycles. Also noted, she can’t marry another man during this period (Iddat). If the husband want to resume co-habitation with his wife or says that I have retained the Thee” before completion of Period of Iddat, then divorced is revoked.
the Period of Iddat ends when a woman give the birth in case of pregnancy. the waiting period of a woman after menopause is 3 months.
It is the ‘proper’ variety of talaq during this kind, 3 times pronouncements of Talaq said by the husband in 3 continuous tuhrs (when the lady isn’t menstruating) within the case of a non unwell lady, its declaration is also created when the interval of a month or thirty days between the continuous pronouncements. This way of talaq is often revoked at any time before the third declaration.
It is gives a man permit to give divorce his wife instantly by just uttering the Word TALAQ (divorce) thrice in a row. it can be oral or written, or by phone or text or Mails.
Talaq can be served by Husband alone or wife alone, or upon mutual consent.
It is the law that permits a woman if she wants to stay and come back to her first husband after divorce. In this order to stay with her first husband, has to marry and sleep with another man and take divorce from him. After this she can return to her first husband and stay with him. It is believed that a woman can become Halala (lawful) for her husband once she undergoes Nikaha Halala Process.
It was claimed that these practices were unconstitutional and would violate the Provision hereinafter mentioned of the constitutional of India & starts this issue “The Triple talaq case” throughput the country
Issues in the Triple Talaq case
- Whether the practice of Triple Talaq is constitutional or not under Constitution of India?
- Whether the practice of Triple Talaq is an essential religious practice of Islam?
Judgment in the Triple Talaq Case ( Shayara Bano Vs Union of India)
The Apex Court of India declared that the provisions of talaq-e-biddat or Instant triple talaq was unconstitutional with 3:2 majority. Rohinton Nariaman J. and U.U.Lalit J. gave the judgement. Abdul Nazeer J. and CJI J.Singh Khehar gave the dissentient judgement wherever as, Kurian Joseph J. gave the concordant judgement in such Triple Talaq Case.
Justice Rohinton Nariman and U.U.Lalit declared that the application of triple talaq was unconstitutional. They expressed that this apply was discretional and was against the fundamental practices of Shariat and basic tenets of sacred writing and so it can’t be protected underneath the elemental right Article 25;
i.e Right to faith. It, absolutely was aforesaid that this apply profaned the elemental rights of muslim lady because it irrevocably and outright ends the wedding while not giving any probability for reconciliation.
Justice Kurian Joseph in his legal opinion expressed that the apply of triple talaq (Triple Talaq case) was against the sacred writing and therefore would lack legal sanction. He aforesaid “what is unhealthy in sacred writing can’t be smart in Shariat, and what’s unhealthy in theology is unhealthy in law as well”.
CJI J.S. Khehar and Justice Abdul Nazeer in their opinion control that tho’ this apply was against the Shariat Act of 1937, it absolutely was a vital a part of Muslim personal law and therefore was protected by Article twenty five. once it involves gender discrimination subject during this apply, it’s to be a legislative action instead of difficult its constitutionality. They passed a judgement to form the apply of triple talaq defunct for 6 months, inside that the general assembly should look at the Muslim Personal law and every one different connected acts and are available out with an appropriate law that may not violate any constitutional and elementary rights of the individuals and therefore the faith.
However, the spousal relationship and nikah-halala subjects weren’t taken into thought because the court most popular to consider the problem of ‘talaq-e-biddat’. On twenty second August 2017, The Apex Court of India, with a majority of 3:2, declared the apply of talaq-e-biddat to be unconstitutional.
When we look at the elemental rights and therefore the gender discrimination facet with relevancy Muslim lady, it’s considerably apt to form the apply of talaq-e-biddat unconstitutional
A], the talaq is also given within the rage of tension once we contemplate the evidence, it’s going to not be volitionally, and therefore the motive of the person uttering the talaq is missing in most of the cases. we have a tendency to|once we|after we} contemplate this it’ll be considerably applicable to provide time to reconciliate the talaq given as we see within the different 2 cases; talaq-e-Ahsan and talaq-e-hasan that area unit voidable.
B], the procedure that a lady needs to endure i.e. nikah-halala, when receiving talaq if she needs to remain together with her former husband; is very traumatic and torturing. Her mental state are going to be disturbed considerably at the side of violating her elementary rights like gender equality and therefore the right to measure with dignity. It essentially devalues the woman’s existence.
CONCLUSION of the Triple Talaq Case
This landmark decision in Shayra Bano case (Triple Talaq case) is undoubtedly and unquestionably a step toward equality, and it has provided a necessary foundation for future personal law and social amendments. This decision in Shayara Bano v UOI (Triple Talaq Case) also dealt with the minority in a very viable manner, which is a step toward secularism.
Although the primary focus was not gender justice, but it will have significant positive implications for advancing women’s rights and gender equality in India. It is expected that this judgement will be viewed objectively and will assist Muslim women in living a better and more secure life as guaranteed by the law of the land.
The judgment of the case breathe for all the Muslim women, who are always suffered a lot due to danger of her marriage. The triple Talaq case is historical prospective judgment for the future and laid an important foundation towards natural justice of woman.
Case Section 377