THE SHAYARA BANO CASE

BACKGROUND: To summarize the situation, Shayara Bano, a victim of domestic violence and dowry harassment, was unilaterally divorced via talaq-e-biddat. She petitioned the Supreme Court, claiming that the Muslim personal law practices of talaq-e-biddat, polygamy, and Nikah Halala were illegal, unconstitutional, and in violation of Articles 14 (equality before the law), 15 (non-discrimination), 21 (right to life with dignity), and 25 (right to freedom of conscience and religion). The Court, on the other hand, decided to focus solely on the subject of talaq-e-biddat.

The petition was backed by India’s government. The All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind, among others who intervened in this case, maintained that the Court lacked jurisdiction to hear a constitutional challenge to Muslim personal law because the topic fell under the legislative domain. The Bebaak Collective and the Centre for Study of Society and Secularism, both of which work with Muslim women, backed the petition and sought the Supreme Court to declare personal law to be subject to the Fundamental Rights.

The Bharatiya Muslim Mahila Andolan and Majlis, as well as other women’s rights organizations, contended that, in light of past Supreme Court decisions, the bench should not review the constitutional legality of talaq-e-biddat, but rather should focus on the current legal remedies.

Talaq-e-biddat lacked legal validity long before this petition was filed, as many critics have pointed out throughout this dispute, even though it had not been pronounced “unconstitutional” by any court. Since the 1980s, a number of high courts have concluded that talaq must be given for a good reason and must be preceded by attempts at reconciliation facilitated by mediators representing both parties. Talaq-e-biddat, in this view, was already unlawful, despite the fact that it was frequently used by husbands and sanctioned by clergy.

VERDICT OF THE COURT: The fact that the five judges on the bench provided three separate lines of reasoning is intriguing in this case. Former Chief Justice Jagdish Singh Khehar and Justice S. Abdul Nazeer wrote the minority opinion. Justice Rohinton Fali Niraman and Justice Uday Lalit, the majority judges, stated their views together, whereas Justice K.M. Joseph adopted a different approach but came to the same conclusion.

On March 30, 2017, the Supreme Court appointed a five-judge constitutional bench. The first hearing took place on May 11th, 2017. The 5 Judge Bench issued its judgment in the Triple Talaq Case on August 22, 2017, pronouncing the practice unlawful by a 3:2 majority.

ANALYSIS:
1.) Personal Law and Constitutional Law– The Court’s decision appears to be correct on the surface, but the majority judges’ methods appear to differ, sparking a dispute about how to handle personal law in a secular society like India. It raises the question of when judges should be allowed to rule on the constitutionality of an uncodified procedure like triple talaq.

Justice Khehar examines it not from the perspective of Muslim law, but rather from the standpoint of the constitution, to see if it is valid under it. To which Justice Khehar responds along the lines of the opposition’s argument that personal law was not adopted by the state and that only state-issued law can be subjected to Fundamental Rights. However, the primary error in the following reasoning is that a behavior that is authorized and enacted by the State, even though it is not codified under personal law, is not within the scope of the sovereign’s law.

Thus, the obvious question that confronts us here is whether any relevant fundamental rights, notably Articles 14 and 15 which include the Right to Equality, are being violated, or whether it can be saved by a basic right like the Right to Religion (Article 25).

2.) Right to Equality under Article 14- Article 14 violations can be detected not just through a reasonable categorization test, but also through the application of arbitrariness. The practice is mostly void due to arbitrariness, according to Justice Niraman. However, it appears that his conclusion was reached not because of gender disparity, but because of a religiously-based belief that triple talaq is arbitrary. He does not illustrate how the inequality occurs per se; rather, he emphasizes that this type of divorce is arbitrary because there is no way to reconcile. As numerous researchers of the problem of arbitrariness have pointed out, it just moves the focus to arbitrariness rather than pointing out where the inequalities exist.

3.) Right to Gender Equality under Article 14 and Article 15– The in-depth study of gender disparity is notably absent from the judgment. Surprisingly, the petitioners did not highlight the inherent discrimination between husband and wife, instead focusing on the practice of triple talaq being un-Islamic rather than the faults of the practice. This sparked a political discussion over cultural minorities vs. modernity. Minority organizations such as the All India Muslim Personal Law Board saw this as a test of their Muslim identity.

4.) Right to Freedom of Religion– In terms of religious components, Justice Niraman did not agree that it would be protected by Article 25 because it only protects behaviors that are an intrinsic part of the religion, which many scholars and commentators on Sharia have indicated is not the case.

While discussing triple talaq, particularly the religious side of the case, Justice Joseph, while agreeing with Justice Niraman, took a different path to reach the same conclusion. He disagreed with Justice Niraman’s assertion that judges should not make religious decisions. In fact, Justice Joseph goes so far as to argue that where a private law is obscure on a specific topic, it is up to the judge to determine what the legislation actually means. As a result, the court, in this case, must decide what the provided circumstance of the particular practice or custom is because no one else can. He examined the matter entirely from a cultural perspective, ignoring the constitutional aspect since he believed that only the legal sanity of triple talaq in Muslim personal law needed to be determined.

CONCLUSION: Without a doubt, the triple talaq decision has become a landmark decision in this country, particularly in terms of private law. It has provided us with a variety of options for dealing with them, particularly Justice Joseph’s “culturally grounded” decision. This decision clearly demonstrated that the Supreme Court has learned from its previous mistakes in the area of personal law.

Despite the fact that it lacked clarification on gender equity and inequality in personal laws and how they should be dealt with, it was a positive step forward. It also did not say if “putting aside” triple talaq meant that it had no legal consequences or that three utterances meant one. After everything is said and done, it is unquestionably a step toward equality, and it has provided a foundation for future personal law and social amendments. This decision also dealt with minorities in a very practical manner, which is a step toward secularism. It is hoped that this decision would be made in the open, allowing Muslim women to live lives that are better and more secure than those promised by the law of the land.

BIBLIOGRAPHY: https://www.scobserver.in/court-case/triple-talaq-case

Aishwarya Says:

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