Shayara Bano vs Union Of India Case

 

On 22 August 2017, the Supreme Court took a landmark decision on the constitutional validity of “Talaq-e-Biddat” popularly known as “Triple Talaq” which is one of the three males initiated divorce in the Muslim community, the other two being “Talaq has an” and “Talaq hasan”. As the name suggests in this form of divorce, where a Muslim man can instantly divorce his wife after repeating the word “talaq” in one sitting, without any state intervention. Here the means of communication could be in any form i.e written, oral, or even electronic, which further enhances a woman’s vulnerability in this arbitrary and unilateral divorce1. This controversial custom given that it is an intersection between gender identity and community has unsurprisingly left Muslim women prone to abuse and in a morbid state, especially given the socio-economic aspect where most of the women are financially dependent on their spouse and the added fear of this whimsical divorce leaves many cases of marital abuse unreported.

Thus because of the pressing need to address the above issue the Supreme Court in this case of Shayara Bano v. Union of India declared this custom unconstitutional by a majority of 3:2 ratio. This ultimately will have a ripple effect on various aspects of Constitutional Law, especially in the context of Fundamental Rights and its relation with the personal laws of the country, while also having an impact on the social aspect of gender justice which unfortunately the judgement does not discuss in detail as it mainly as it focuses mainly on the validity of Triple Talaq in context to marriage as an institution.

Personal Law and Constitutional Law

On the face of it, the Court’s decision was the right one to take but the approaches adopted by the majority judges seem to differ which gives rise to the debate on how to look at personal law in a secular country like India. It raises the question at what point is it acceptable for the Judges to make decisions on the constitutionality of an uncodified practice like triple talaq.


Justice Khehar does not look at it from the aspect of Muslim law but sees it completely from the point of view of the consitution and if it can be held valid under the same. To which Justice Khehar replies on the similar lines of the opposition’s argument that personal law was not a state enacted law and only state enacted law can be subjected to Fundamental Rights. However the major flaw which can be seen in the following argument that how a practice which even though is not codified under the personal law is authorized and enacted by the State not be under the scope of the law of the sovereign.


Now looking at Justice Niraman’s argument we find that he does consider triple talaq to be “law in force” as per Article 13. With a very reasonable argument that since Section 211 of Muslim Personal Law (Shariat) Act 1937 gives talaq in general authority so it automatically comes under the supervision of the state laws.