Impact of landmark judgments series #5 Triple Talaq Judgment (2017)
- Advocate Anil Lalla
- Apr 11
- 5 min read
The Supreme Court declared the practice of instant divorce in Islam unconstitutional, marking a significant step towards gender justice.
The Triple Talaq Judgment (2017), also known as Shayara Bano v. Union of India, marked a significant step towards gender justice by declaring the practice of instant divorce in Islam, known as Talaq-e-Biddat, unconstitutional. Here are key aspects of the judgment:
1. Unconstitutionality of Triple Talaq: The Supreme Court ruled by a 3:2 majority that Triple Talaq is unconstitutional because it is "manifestly arbitrary" and violates the fundamental rights of Muslim women, particularly the right to equality under Article 14.
2. Judicial Reasoning: Justices Rohinton Nariman and U.U. Lalit held that Triple Talaq is not protected by the Muslim Personal Law (Shariat) Application Act, 1937, as it is arbitrary. Justice Kurian Joseph concurred, stating that Triple Talaq is against the Quran and lacks legal sanction.
3. Legislative Directive: The court directed the government to enact legislation regulating Muslim divorce practices within six months, as the practice was deemed unconstitutional.
4. Impact on Gender Justice: This ruling was seen as a landmark victory for gender justice, empowering Muslim women by ending a practice that allowed husbands to divorce them instantly without their consent.
What were the main arguments presented by the petitioners in the Triple Talaq case
In the Shayara Bano v. Union of India (2017) case, the petitioners presented several key arguments against the practice of Triple Talaq:
1. Violation of Fundamental Rights: The petitioners argued that Triple Talaq violates fundamental rights under the Constitution, particularly Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty). They contended that the practice leaves women vulnerable and powerless, as husbands can initiate divorce without their consent or any legal recourse.
2. Arbitrary Nature of Triple Talaq: The petitioners emphasized that Triple Talaq is manifestly arbitrary, allowing husbands to break marital ties capriciously without any attempt at reconciliation. This arbitrariness was seen as a violation of Article 14.
3. Lack of Quranic Sanction: They argued that Triple Talaq lacks sanction from the Quran and is not an essential practice in Islam. This was supported by examples from other Islamic countries that have abolished the practice.
4. Inequality and Gender Discrimination: The petitioners highlighted that Triple Talaq discriminates against women, as only men can exercise this form of divorce, leaving women without similar rights. This was seen as a violation of Article 15, which prohibits discrimination based on gender.
What were the main arguments presented by the respondents in the Triple Talaq case
In the Shayara Bano v. Union of India (2017) case, the respondents presented several key arguments:
1. Protection Under Right to Freedom of Religion: The respondents argued that Triple Talaq is an essential practice in Islam and is protected under Article 25 of the Constitution, which guarantees the right to freedom of religion. They contended that the practice is intrinsic to Muslim personal law and should not be subject to judicial scrutiny.
2. Marriage as a Private Contract: Respondents like Kapil Sibal argued that Muslim marriage is a private contract and thus not subject to judicial review. They emphasized that personal laws are not enacted by the state and should not be challenged on constitutional grounds.
3. State Involvement Not Necessary: Lawyers for the respondents, such as Manoj Goel, argued that divorce is a matter between two individuals and does not involve state action, suggesting that state intervention is not necessary.
4. Alternative Safeguards for Women: Respondents suggested that women could protect themselves by registering their marriages and including conditions in the Nikahnama that prohibit Triple Talaq, thereby providing them with some safeguards.
What were the main counterarguments to the petitioner's claims about Triple Talaq
The main counterarguments to the petitioners' claims about Triple Talaq were presented by the All India Muslim Personal Law Board (AIMPLB) and other respondents:
1. Protection Under Right to Freedom of Religion: They argued that Triple Talaq is an essential practice in Islam and is protected under Article 25 of the Constitution, which guarantees the right to freedom of religion. They contended that the court should not interfere with matters of faith.
2. Personal Law as a Matter of Faith: The AIMPLB emphasized that personal laws are drawn from the Quran and Hadith, and Triple Talaq is a 1,400-year-old practice. They argued that it is not a question of constitutional morality but of faith.
3. Legislative Policy: The respondents suggested that the issue of Muslim Personal Law is a matter of legislative policy and should not be interfered with by the judiciary. They argued that personal laws cannot be rewritten in the name of social reforms.
4. Minority View: The minority opinion in the Supreme Court, held by Chief Justice J.S. Khehar and Justice Abdul Nazeer, suggested that while Triple Talaq may be undesirable, it is not for the courts to strike it down. Instead, they believed it was Parliament's role to enact legislation governing the practice.
How did the Supreme Court justify its decision to ban Triple Talaq
The Supreme Court justified its decision to ban Triple Talaq by declaring it unconstitutional in the Shayara Bano v. Union of India (2017) case. The Court held that Triple Talaq is "manifestly arbitrary" and violates Article 14 of the Constitution, which guarantees equality before the law. The majority of the judges ruled that this practice allows a man to break down a marriage capriciously, without any attempt at reconciliation, which is contrary to the principles of justice and equality.
Additionally, the Court emphasized that Triple Talaq is not an essential practice in Islam, as it lacks sanction from the Quran and has been abolished in many Muslim-majority countries. By striking down Triple Talaq, the Court aimed to protect the rights of Muslim women and uphold constitutional values of equality and justice.
What legal measures did the government take to enforce the ban on Triple Talaq
To enforce the ban on Triple Talaq, the Indian government took several legal measures:
1. Legislative Action: The Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted by Parliament on July 30, 2019. This law made the practice of instant Triple Talaq illegal and punishable with up to three years in jail for the husband.
2. Ordinance: Before the Act was passed, the government issued The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, which also criminalized Triple Talaq. This ordinance was promulgated in September 2018 to address the continued practice despite the Supreme Court’s ruling.
3. Criminalization: The law stipulates that Triple Talaq in any form (spoken, written, or electronic) is void and illegal. It provides for maintenance for the wife and custody of minor children to the mother.
4. Procedural Safeguards: The law ensures that only complaints by the wife or her blood relatives are recognized, and the offense is non-bailable unless a magistrate grants bail after hearing the wife.
(caution : These articles cannot and should not be considered as a replacement of a professional legal advice as there are many intricacies that may not have mentioned here).
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