Case Comment Contitutional Law Family law


Rimi Agarwal, a second-year student at Manipal University Jaipur, wrote the article “SHAYARA BANO V UNION OF INDIA- CASE STUDY”

Details Of The Case

Title of the case: Shayara Bano v. Union Of India 

Citation: AIR 2017 9 SCC 1 (SC) 

Name of Appellant: Shayara Bano and others 

Name of Respondent: Union of India, All India Muslim Personal Law Board and Rizwan Ahmed

Court: The Supreme Court of India 

Date of judgment: 22nd August 2017

Bench: Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench. 


In the case of Shayara Bano v. Union of India, known as the “Triple Talaq Case,” India received a historic verdict declaring the custom of triple talaq (instantaneous divorce) illegal. This ruling has been widely embraced as a defense against social evils in many jurisdictions. The Supreme Court of India, by a majority decision, disallowed instantaneous triple talaq for wise and fundamentally sound reasons. The subject matter of this lawsuit is limited to “triple talaq.”

The case of Shayara Bano resulted in the Muslim tradition of Triple Talaq being outlawed. Under “Sharia Law,” a Muslim man can divorce his wife right away without the involvement of authorities by simply saying the word “TALAQ” three times. The communication methods could be written, verbal, or even technological, which increased the likelihood of vulnerability of a Muslim woman in this kind of capricious and unilateral divorce. The Arabic term for divorce is “talaq.”

According to Sharia law, there are three different kinds of divorce; only “talaq-e-bidat” is irreversible. It is most common in Muslim communities in India that adhere to the Hanafi School of Law. Muslim women are not allowed to divorce their spouses under this legislation, but husbands are. To file for divorce under the Muslim Personal Law (Shariat) Application Act of 1937, women must initiate a court action. Shayara Bano and Rizwan Ahmed were wed for fifteen years.

Rizwan divorced her in 2016 employing an oral triple talaq (talaq -e bidat). She then filed a Writ Petition before the Apex Court, stating that the practices of polygamy, nikah-halala, and talaq-e-bidat should be declared unconstitutional due to their violation of Articles 14, 15, 21, and 25 of the constitution.

Triple Talaq :

1Triple Talaq is the custom in which a Muslim man can obtain a divorce by saying the word “Talaq” three times. As technology developed, this idea was abused, with husbands sending talaq via voice notes, WhatsApp messages, and other means. The possibility of communication in this situation being oral, written, or even electronic increases a woman’s vulnerability in this senseless and unilateral divorce2.

Muslim women are surprisingly more vulnerable to abuse and in a morbid state as a result of this contentious custom, which blurs the lines between gender identity and community. This is especially true given the socioeconomic context, in which the majority of women rely on their husbands for financial support and the added fear that this arbitrary divorce will result in a high number of cases of marital abuse unreported.

Description :

The Constitutional Bench has ruled that instantaneous triple talaq is unconstitutional. By a 3 to 2 vote, the Supreme Court declared the practice of triple talaq, or talaq-e-bidat, to be unlawful. The Muslim Women (Protection of Rights on Marriage) Bill, 2019, enacted by the Indian Parliament on July 30, 2019, deemed triple talaq unlawful and unconstitutional, making it a criminal offense on August 1, 2019. Women subjected to triple talaq have finally received justice from the courts. The court has made it clear that principles of equality, particularly gender equality, are more than just lofty ideals.

Facts Of The Case

On August 22, 2017, a 3:2 majority of the Supreme Court’s 5-judge bench ruled that this practice was illegal. After a 15-year marriage, Shayara Bano marries Rizwan Ahmed. In 2016, he divorced her with an immediate triple talaq (talaq-e-bidat). She then filed a writ suit in the Supreme Court, arguing that the following three activities need to be declared unlawful since they violate Articles 14, 15, 21, and 25 of the Constitution.

• Talaq-e-bidat

• Nikah – halal 

• Polygamy (having several spouses)

Shayara Bano and Rizwan Ahmed were married for fifteen years. She endured dowry harassment and domestic abuse. In 2016, Rizwan Ahmed unilaterally divorced her using instantaneous triple talaq. Shayara Bano then filed a writ case with the Supreme Court. In her petition, she declared that the practices of instant triple talaq, polygamy, and Nikah Halala in Muslim personal law violated multiple fundamental rights guaranteed by the Indian Constitution, including Articles 14 (equality before the law), 15 (non-discrimination), 21 (right to life with dignity), and 25 (right to freedom of religion and conscience).

The Union of India and women’s rights groups like the Bebaak Collective and the Bhartiya Muslim Mahila Andolan (BMMA) supported Ms. Bano’s argument that these actions should be deemed unlawful. They urged the court to rule that fundamental rights applied to personal law. However, the All-India Muslim Personal Law Board (AIMPLB) argued that uncodified Muslim personal law is immune from constitutional judicial review and that the Court lacked jurisdiction to consider a constitutional challenge to Muslim personal law, as these are fundamental Islamic practices safeguarded by Article 25 of the Constitution.

On February 16, 2017, the Court requested written responses from Shayara Bano, the Union of India, several women’s rights organizations, and the All India Muslim Personal Law Board (AIMPLB) regarding challenges related to polygamy, nikah-halala, and talaq-e-bidat. Nikah-halala, also known as tahleel marriage, involves a woman who, after being divorced through triple talaq, marries another man, consummates the marriage, and then divorces him to remarry her previous husband. The Court sought these responses to address the issues of talaq-e-bidat, polygamy, and nikah-halala.

The Union of India and women’s rights organizations, such as Bhartiya Muslim Mahila Andolan (BMMA) and Bebaak Collective, supported Ms Bano’s plea, arguing that these practices are unconstitutional. In contrast, the All India Muslim Personal Law Board (AIMPLB) contended that uncodified Muslim Personal Law is exempt from constitutional judicial review under Article 13(2) and that these practices are fundamental elements of the Islamic faith, as guaranteed by Article 25 of the Constitution. Shayara Bano’s petition was accepted by the Supreme Court on March 30, 2017, after a 5-judge constitutional bench was established. On August 22, 2017, the 5-judge bench ruled by a 3 to 2 vote that the practice of triple talaq is unlawful.

Issues Raised In The Case

  1. Is the talaq-e-bidat ritual, which mentions Instantaneous Triple Talaq in particular, a necessary Islamic practice?
  2. Does the practice of instantaneous triple talaq violate any of the Constitution’s fundamental rights?
  3. Does the Constitution’s Act 25 preserve Triple Talaq?
  4. Does the Shariat Act apply to triple talaq cases?

Arguments Of The Petitioner

Mr. Amit Chandha entered the conversation by contending that Islamic personal law refuses to acknowledge the “Triple Talaq” kind of divorce. Additionally, they said that the Quran wasn’t in favor of triple talaq or unilateral divorce. Under Muslim law, a divorce requires two components: a prior attempt at reconciliation and a reasonable cause. He further contended that it ought to be overturned since it contravenes Articles 14 and 15 of the Constitution. He proposed an alternative divorce law known as the “Dissolution of Muslim Marriage Act, 1939,” which would make possible divorce for any member of the Muslim community, regardless of gender.

Mr Salman Khurshid entered the debate by stating that a man can get a divorce under the Quran if he issues a talaq three times, presuming that there is a valid reason for the divorce and attempts at reconciliation have failed. Additionally, the Quran states that every talaq should be communicated with a three-month (Iddat) waiting period for reconciliation. If the two of them are not able to reach an agreement during this time, the husband may file for an irreversible and effective divorce by proclaiming talaq a third time. Additionally, argued that triple talaq should be ruled invalid because the majority of Muslim communities in existence are Sunni (90%) and do not support it.

Arguments Of The Respondent

Mr. Kapil Sibal made a statement stating that the idea of judicial review is unacceptable because Muslim marriage is a private contract. Additionally, note that personal laws are not covered by Article 13. According to Article 25, the court can only consider validity once parliament has altered secular activities (religious practice freedom) (2). Furthermore, triple talaq does not discriminate against Muslim women, and in the event of a disastrous marriage, she is entitled to remedies under : 

Special Marriage Act,1954.

By delegating the right to talaq to herself.

Insisting of a high mehar amount.

Mr Mukul Rohatgi entered the debate by stating that polygamy, Nikah halala, and triple talaq were three legitimate constitutional justifications. The Attorney General contended that there is a need to reexamine the issue of “Immunity to uncodified personal law from fundamental rights challenges,” using the Narasu Appa Mali case as support.

Manoj Goel presented a compelling case that divorce is essentially a private matter between two people and that the state has no role in the process. Nariman countered that the Shariat Act of 1937 incorporates the state, hence the state must have a role.

Judgement Of The Court

On August 22, 2017, the Supreme Court rendered a decision by a 3:2 majority, declaring Triple Talaq to be unconstitutional. Many religious members made up the five-judge bench that heard the contentious triple talaq case in 2017. The five judges were Abdul Nazeer (a Muslim), RF Nariman (a Parsi), Chief Justice JS Khehar (a Sikh), Justices Kurian Joseph (a Christian), and UU Lalit (a Hindu).

According to Justices Rohinton Nariman and Uday Lalit, Muslim personal law (Shariat) application 8, 1937 governs talaq-e-bidat. They claimed that because the practice is arbitrary, it is unconstitutional. However, Justice Kurian Joseph pointed out that triple talaq is illegal since it violates the Quran. He stated that “what is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well” . They maintained that the practice of Instantaneous Triple Talaq violates the law and theologies, and that its widespread adoption does not justify it. Notably, Chief Justice Khehar and Justice Abdul Nazeer’s minority dissenting opinion maintained that this kind of activity is a fundamental component of Islam’s religion.

They defended their position by arguing that many people engage in the practice of talaq-e-bidat, making it fundamental to Islam and constitutional. They claimed it is supported by the majority of Muslims and has the approval of religious organizations. Article 25 of the Constitution states that no one’s fundamental religious practice may be taken away by the state. However, a practice must be a necessary religious practice to fall under the exception specified in Article 25; if it is arbitrary, it does not qualify. Therefore, the key question was whether talaq-e-bidat is a necessary Islamic religious practice.

Since Shariat, or Muslim personal law, is not founded on state legislative action, Justice Khehar felt that this practice did not violate any of the exceptions listed in Article 25(1) of the Constitution.

Rule of law: Articles 14 and 15 of the Constitution : 

The petitioner in this case claimed that the practice of triple talaq, or instantaneous talaq, is violative of fundamental rights under the constitution. The foremost argument was given based on Article 14 of the Constitution, which provides the right to equality to all its citizens, and Article 15 which prohibits any kind of discrimination among people based on caste, creed, religion, race, gender, etc. The right of instantaneous talaq or triple talaq was only available to husbands who exercised it arbitrarily without any restrictions. On the other hand, women had no right to exercise this option. According to the doctrine of eclipse and severability, if any law infringes upon the fundamental rights of any person enshrined in Part III of the Constitution, it must be struck down. 

Article 25 of the Constitution

The next argument relied on Article 25 that whether it is an essential practice under Muslim law and whether it must be protected under the Right to Religion. Article 25 guarantees its citizens the right to practice and propagate any religion of their choice. However, this right is not absolute and is subject to a number of restrictions like Public order, Morality, Health etc. 

During the discussion on Article 25, the Court observed that this form of talaq lacks the sanctity of the Quran and is nowhere mentioned in the holy book of Muslims, which also means that it is not an essential practice. Moreover, Islamic countries around the world themselves have abolished this form of talaq. The Court stated that “the practice which is considered to be evil in theology cannot be virtuous in the eyes of law and protected under the shelter of legislation.  

Steps By The Government : 

Following the court’s 2017 ruling, the Indian Parliament decided to make triple talaq illegal and enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019 in an effort to stop the practice and lower the number of cases of triple talaq in the nation. The Act’s Chapter 2 Section 3 declares Talaq-e-Biddat null and void. The punishment for attempting to use triple talaq or talaq-e-bidat to divorce his wife is outlined in Section 4. The maximum penalty is three years in prison and a fine. The wife is likewise entitled to receive from her husband the amount or stipend specified in Section 5 of the Act for herself and her children. Triple talaq is declared a cognizable and compoundable offence under Section 7, and the husband is not eligible for bail unless the court determines that there are good reasons to do so. 

Analysis Of The Case

Personal laws are those that control an individual’s or a community’s private affairs. For instance, guardianship, adoption, marriage, family issues, and so forth, are all governed by constitutional law, which is the ultimate law from which all other laws flow. Every law in a nation must be per that nation’s Constitution. The primary inquiry that the justices in this case had to consider was whether some aspects of Muslim personal law violated the nation’s constitution. One such tradition is triple talaq, in which a husband files for divorce by pronouncing the word “talaq” three times in one speech. As soon as the divorce is granted, it cannot be reversed, and the woman is forced to acknowledge that the marriage is over.

In the past, many women have suffered from this terrible custom, whereby spouses have taken advantage of the right to an arbitrary and unreasonable divorce at any time they choose. Women had to follow their husbands’ whims regardless of whether they were right or wrong and lived in continual terror. This type of divorce violated the most significant fundamental right to equality because it could only be started by the husband, not the wife. Women’s rights to life and personal liberty were violated by the atrocities and miseries caused by this type of talaq since, in most cases, the husband refused to support the wife and the children. Furthermore, it can be concluded from the Court’s rulings that the Prophet Muhammad did not support triple talaq and that the Quran, their sacred book, does not mention it. The majority of Islamic nations worldwide have already outlawed this type of talaq. Had it been a fundamental aspect of the Muslim faith, it would have been referenced in their holy text and would not have been outlawed in Islamic nations. This was an additional consideration that the bench made when determining whether triple talaq was constitutional. 

When addressing these issues in this case, Justice Khehar approached the case from the perspective of the Constitution. As a result, he expressed the opinion that the state lacks the authority to interfere with the private laws of any religion and that the constitutionality of laws falling outside of Article 13’s definition of law cannot be challenged in court. Justice Nariman’s remark is excellent in this regard. In opposition to Justice Khehar’s opinions, he claimed that “triple talaq” is permitted by Section 2 of the Shariat Act, which grants the state the right to impede any talaq-related behaviour that is widely practised in society. This claim is made as part of the “law in force” under Article 13. This law was enacted prior to the establishment of the constitution. Therefore, if needed, the eclipse and severability doctrines must be used. Triple talaq has only ever been used as a custom; it is not acknowledged in the Quran or Sharia. This degraded version of talaq causes agony and injustice against women. There is a gender bias in it as well. 

Regarding equality, the majority cited E.P. Royappa v. State of Tamil Nadu (1974) as support for the idea that violations might arise from both arbitrariness and the requirement of fair classification. The judges have given their diverse dissenting views based on the law and fundamental rights. On the other hand, it appears that the Bench did not give gender inequity much thought. Rather than talking about the negative effects of triple talaq and the contemporary component of gender bias, the conversation switched to how un-Islamic triple talaq is. In today’s discourse, this is a concerning problem.  They also fail to emphasize the necessity or significance of the “Uniform Civil Code,” as demonstrated in the Mohd. Ahmed Khan v. Shah Bano (1985) case.  The outcome that the case had in public could have been a major reason.

This case has altered our understanding of and interpretation of both state and federal constitutional laws. It appears that the Court fixed the errors it had made in earlier decisions involving comparable issues. For instance, the Guwahati High Court ruled that this type of talaq is lawful in the cases of Jiauddin Ahmed v. Anwara Begum (1981) and Rukia Khatun v. Abdul Khalique Laskar (1981). In this instance, the court not only ruled that the triple talaq practice was unlawful and unconstitutional, but it also gave the government instructions to ensure that future divorces based on this practice would be rare and prevented. Instead, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed by the government, making triple talaq a crime. Such adjustments were necessary in a circumstance where Muslim women were denied the ability to file for divorce from their spouses. 

It cannot be argued that cases of divorce based on triple talaq have entirely halted, even though the practice has been declared unconstitutional in our nation and illegal by the Act of 2019. It is still in practice somewhere in our nation’s remote and underdeveloped parts, where people are unaware that there is even such a law, and it goes unreported since no one, not even the victim, reports it. Women must be made aware of the law and their rights for any such incidents or cases to be reported to the appropriate authorities. We may anticipate certain changes in the status and advancement of Muslim women in society once they are all informed about their legal protections and rights. To be able to strongly advocate for themselves, individuals must be given more authority. Only until they are completely educated, self-sufficient, and confident will this be feasible. In addition to enacting legislation to protect them, the government needs to step up efforts to educate women, particularly in underdeveloped and rural areas. It must enable them to become financially independent by giving them possibilities for advancement and employment security. 

It is necessary to reconsider the other two customs referenced in the case, particularly the custom of nikah halala. Women are particularly susceptible to this wicked custom, which requires them to marry another guy, consummate their union, and then wait for their current husband to divorce them voluntarily before they can marry her first husband again. A Muslim woman even has the legal right to divorce her spouse under the Dissolution of Muslim Marriage Act, 1939, if he neglects to provide for her and fulfill her commitments because of a second marriage. 


Judges have demonstrated that there is still ambiguity in the reasons provided, despite the fact that the Supreme Court ruled 3:2 that triple talaq is illegal. Justice Nariman Lalit Joseph deemed triple talaq to be both unconstitutional and unIslamic. The Indian constitution eliminated it, making the law of the land clear today. The Indian government also passed legislation to lessen the threat. Without a doubt, the historic ruling in the Shayara Bano case was a stride toward equality and laid the groundwork for upcoming changes to social and personal laws. This Shayara Bano v. UOI ruling also addressed the minority in a very workable way, which is a step in the direction of secularism.

While gendered justice was not the main focus, this will have a good impact on women’s rights and gender equality in India. It is anticipated that this ruling, which is supported by the law of the land, will be seen objectively and help Muslim women live better, safer lives. It was a step in the right direction, even though it lacked details on how gender equity and inequality in personal legislation could be addressed. It is no longer acceptable for a husband to abandon his wife by severing the marriage on the spur of the moment. The court came to the conclusion that equality—especially gender equality—is more than just an abstract concept. On the other hand, the opinions of the minority bench worry the country.


  1. AIR 1952 Bom 84 ↩︎
  2. ↩︎

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