Shayara Bano case: A landmark verdict on triple talaq

The practice of triple talaq, or talaq-e-bidder, is a form of Islamic divorce that allows a Muslim man to end his marriage by uttering the word “talaq” (divorce) three times in one sitting, without the consent or involvement of his wife. This practice has been widely criticized for being arbitrary, discriminatory, and unjust to Muslim women, who have no say in the matter and are often left destitute and vulnerable.

In 2016, Shayara Bano, a Muslim woman from Uttarakhand, challenged the validity of triple talaq after her husband divorced her through this method. She filed a writ petition in the Supreme Court of India, seeking to declare triple talaq, polygamy, and nikah halala (a practice that requires a divorced woman to marry and consummate with another man before she can remarry her former husband) as unconstitutional and violative of her fundamental rights under Articles 14 (equality before law), 15 (prohibition of discrimination), 21 (right to life and dignity), and 25 (freedom of religion) of the Constitution of India.

The Supreme Court, in a historic judgment delivered on August 22, 2017, by a five-judge bench comprising Chief Justice J.S. Khehar and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit, and S. Abdul Nazeer, struck down triple talaq as unconstitutional by a majority of 3:2. The majority opinion held that triple talaq was not an essential part of Islam and was manifestly arbitrary and unreasonable, thus violating Article 14. The minority opinion, however, upheld triple talaq as a matter of personal law protected by Article 25 and suggested that the Parliament should enact a law to regulate it.

The judgment was hailed as a victory for Muslim women’s rights and gender justice in India, as it put an end to the oppressive and discriminatory practice of triple talaq that had been prevalent for centuries. The judgment also opened up the possibility of reforming other aspects of Muslim personal law that are in conflict with constitutional values and human rights.

Re: marriage law after the judgment in the Shayara Bano case

Following the judgment in the Shayara Bano case, the Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized the practice of triple talaq and made it a cognizable and non-bailable offence punishable with imprisonment for up to three years and fine. The Act also provided for subsistence allowance for the divorced woman and custody rights for her minor children.

However, the Act faced criticism from various quarters for being arbitrary, excessive, and violative of Muslim men’s rights. Some argued that the Act was unnecessary as the Supreme Court had already declared triple talaq null and void. Others contended that the Act was disproportionate as it imposed a harsh penalty for a civil wrong. Still, others claimed that the Act was discriminatory as it singled out Muslim men for criminalization while other forms of divorce remained outside its purview.

The constitutional validity of the Act was challenged in several petitions filed in different high courts across India. In January 2020, the Kerala High Court upheld the constitutionality of the Act and dismissed a batch of petitions challenging it. The court held that the Act was not violative of Articles 14, 15, 21, or 25 of the Constitution and that it was within the legislative competence of the Parliament to enact such a law. The court also observed that the Act was not retrospective in nature and that it did not interfere with the personal law or religious freedom of Muslims.

However, in March 2020, the Rajasthan High Court issued a notice to the central government on a petition challenging the constitutionality of the Act. The petition argued that the Act was arbitrary, irrational, and violative of Articles 14, 15, 21, and 25 of the Constitution. The petition also contended that the Act was ultra vires the legislative competence of the Parliament as it encroached upon the domain of personal law and religious freedom of Muslims.

The issue of re: marriage law after the judgment in the Shayara Bano case is still pending before various courts in India and awaits a final resolution. The question remains whether the Act is a progressive step towards ensuring justice and dignity for Muslim women or a regressive move towards infringing upon the rights and autonomy of Muslim men.

Frequently asked questions with answers on re: marriage law after the judgment in the Shayara Bano case:

What is the re: marriage law after the judgment in the Shayara Bano case?

The re: marriage law after the judgment in the Shayara Bano case is the Muslim Women (Protection of Rights on Marriage) Act, 2019, which was enacted by the Parliament to criminalize the practice of triple talaq and provide relief to Muslim women who are divorced by this method.

Why was the re: marriage law enacted after the judgment in the Shayara Bano case?

The re: marriage law was enacted after the judgment in the Shayara Bano case to give effect to the Supreme Court’s decision that struck down triple talaq as unconstitutional and to ensure that Muslim women are not subjected to this arbitrary and discriminatory form of divorce.

What are the main provisions of the re: marriage law after the judgment in the Shayara Bano case?

The main provisions of the re: marriage law after the judgment in the Shayara Bano case are:

Any pronouncement of triple talaq by a Muslim man, whether spoken, written, or electronic, shall be void and illegal.

Any Muslim man who pronounces triple talaq upon his wife shall be punished with imprisonment for a term which may extend to three years and a fine.

The divorced woman shall be entitled to receive from her husband such amount of subsistence allowance as determined by a magistrate.

The divorced woman shall also be entitled to custody of her minor children in such manner as determined by a magistrate.

The offence of triple talaq shall be cognizable and non-bailable and can be compounded by the magistrate upon the request of the woman with terms and conditions as he may determine.

What are the criticisms of the re: marriage law after the judgment in the Shayara Bano case?

The criticisms of the re: marriage law after the judgment in the Shayara Bano case are:

The law is unnecessary as the Supreme Court had already declared triple talaq null and void, and there was no need for separate legislation to criminalize it.

The law is disproportionate as it imposes a harsh penalty for a civil wrong, and creates a situation where a Muslim man can be jailed for divorcing his wife while other forms of divorce remain outside its purview.

The law is discriminatory as it singles out Muslim men for criminalization while other communities are not subject to such restrictions on their personal laws and religious freedom.

The law is arbitrary as it does not define what constitutes triple talaq, how it can be proved, and what are exceptions or defences available to the accused.

The law is violative of Articles 14, 15, 21, and 25 of the Constitution as it encroaches upon the domain of personal law and religious freedom of Muslims and infringes upon their rights to equality, non-discrimination, life, dignity, and privacy.