Shah Bano to Shayara Bano – Timeline of Triple Talaq and Three Decades of a Brawl
October 20, 2021
What was started by Shah Bano three decades ago in 1985, to give Muslim women their constitutional right to gender equality and dignity, found fruition in 2017 when the controversial instant Triple Talaq was challenged for the first time by Shayara Bano in the Supreme Court of India. What was met with immense protests previously for entitling Shah Bano with alimony was welcomed with opened hands by activists, scholars, jurists, and even parties differing in their ideology? However, back in 1986, the prevailing political atmosphere had pushed the then PM Rajiv Gandhi to bring legislation to vitiate the court ruling which put an end to Shah Bano’s struggle which could have brought forth much-needed reforms in the Muslim personal law.
The case of Mohammad Ahmed Khan v. Shah Bano Begum & Ors. (1985) and the accompanying debate highlighted the danger that religious fundamentalism posed to liberal democracy in the absence of a standard civil law. India suffers from a type of communalism developed by British imperialists to undercut the Nationalist Movement by demanding religious rather than national allegiance. Religious identity was used as a tool of political mobilization, and despite the efforts of Mahatma Gandhi and Jawaharlal Nehru, the consequent political split between Hindus and Muslims increased over time, eventually culminating in a partition in 1947. Their dedication to the idea of tolerance, equality, and togetherness since India’s independence became incompatible with Shah Bano, and the politicization of religion usurped democratic governance by fomenting discord among the Indian people. Furthermore, to preserve their Islamic identity, Muslim fundamentalists abandoned equality.
Religious Dogma Trumped Constitutional Validity of Equality
The case of Shah Bano defined to what extent the Courts can intervene in the Muslim personal law. Herein, the significant question was whether the right provided by Section 124 of the Code of Criminal Procedure prevails over the parties’ law in cases where disagreement arises. As a result, the Court stated that a Muslim woman is entitled to maintenance under this clause and that it would apply to her even if it conflicted with Muslim personal law.
The Supreme Court clearly said that Triple Talaq cannot deprive a divorced Muslim woman of her right to maintenance if she is unable to support herself or her children after her husband has disowned or divorced her, although this was met with much criticism. It took into account several debatable issues surrounding the application of various personal laws, including the need for the establishment of a Uniform Civil Code, as called for in Article 44 of the Constitution of India. It also saw the Apex Court diverge from its conventional view of personal laws, acknowledging the tension between the need for gender equality and Islamic beliefs, and adopting a more inclusive and egalitarian reading of Muslim personal law.
The basic concept of Triple Talaq is rife with inequity, and it goes against the Indian Constitution’s fundamental rights. Prima facie, this practice violates Articles 14 (equality before law), 15 (freedom to propagate any religion), and 21 (protection of life and personal liberty). Apart from that, the system violates Article 44, which ensures the State’s continued efforts to develop a Uniform Civil Code, as well as Article 25 which provides freedom of conscience and free profession, practice, and propagation of religion. The contradictions caused by the constitutional guarantee of equality and non-discrimination for women and the continued applicability of personal laws were brought to light in the Shah Bano case.
Furthermore, due to the lack of a Uniform Civil Code, this political inferno was magnified. Conservative Muslims opposed the adoption of a Uniform Civil Code, claiming that not only was it too progressive, but that any modification impacting personal law would be a breach of the religious freedom granted by the Indian Constitution, which is distinctly secular. Thus, what was supposed to be a women’s rights issue became a flashpoint for religious tensions between Hindu and Muslim fanatics. The ruling was denounced by Muslim religious authorities as a violation of Islamic law, to which Justice D. Y. Chandrachud stated that the interpretation of the law, personal or otherwise, is not only the function but the obligation of the court. This was, however, overturned by the Government to pacify the masses, and thus, the Muslim Women (Protection on Divorce Act), 1986 was passed which made the husband bound by law to pay maintenance to a divorced wife only for the period of Iddat.
Inclusion of Equality by the Supreme Court by Upholstering the Draconian Practice
Years after that, in 2001, the constitutional validity of the Muslim Women (Protection on Divorce Act), 1986 was challenged in Danial Latifi & Anr v. Union of India, where the Supreme Court stated that the husband’s responsibility to pay maintenance under the Act extended beyond the period of Iddat. Much later in the year 2017, the landmark judgment came which upholstered the draconian practice. The instantaneous triple talaq or colloquially known as ‘talaq-e-biddat’ made the marriage null and void on the utterance of ‘talaq’ three times by a man, and which finds no place in the Holy Quran, was declared unconstitutional by a 5-judge bench consisting of judges from different faiths.
In Shayara Bano v. Union of India, the Supreme Court’s Constitution Bench ruled that the practice of instant Triple Talaq is unconstitutional and violates Articles 14 and 15, and ordered the Central Government to enact legislation to regulate the area. While Justices Kurien Joseph, Rohinton Nariman, and UU Lalit were more assertive in stating that although the Muslim Personal Law (Shariat) Application Act, 1937 regulated triple talaq, the practice was retrograde and unworthy since it made talaq irrevocable and broke marital ties for perpetuity, thus violating the right to equality under Article 14, the other two judges, namely Justices Khehar and Abdul Nazeer though agreed that the practice was ‘sinful’ but stated that it was not the business of the Court to indulge in the personal laws protected by the Constitution. The pertinent question was as to how far religious accommodation goes when it comes to head with other fundamental rights.
The majority concluded that the 1937 Act is a pre-constitutional legislative measure that falls under Article 13(1) of the Constitution. Furthermore, the 1937 Act recognizes and enforces all forms of talaq recognized and implemented by Muslim personal law. When it comes to the Muslim personal law applicable to Sunnis in India, this would invariably include Triple Talaq. The question, therefore, became as to what constitutes an essentially religious activity, thereby justifying protection under Article 25 of the Constitution’s guarantee of freedom of religion. According to Javed v State of Haryana, a 2003 Supreme Court ruling, triple talaq is merely one type of talaq that is legal and allowed by the Hanafi School and does not constitute an essential Islamic practice as what a religion permits or does not permit does not become a religious practice or a positive doctrine of religion and the same can be regulated or outlawed by legislation in the interests of public order, morality, and health.
The majority adjudged the practice to be a breach of a basic right under Article 14 (right to equality), using the manifest arbitrariness test. The majority came to this judgment because triple talaq is a novel form of talaq: it is a form of talaq that is considered wicked but legal under Hanafi Shariat law. Second, triple talaq is arbitrary due to its sudden and irreversible character. As a result, the 1937 Act is in direct opposition with the Constitution’s Part III, which recognizes fundamental rights and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced as a result, which got the President’s assent on 31st July 2019 and became retrospectively effective from 19th September 2018. It is worth noting that the Muslim Women (Protection of Rights on Marriage) Act of 2019, makes Triple Talaq a cognizable and non-bailable offense, with a maximum punishment of three years in prison for a Muslim spouse who does so.
When a community does not give equal rights to all members of that group, the State must interfere in a secular democracy. Even if it weakens communal identity, the Government must use its power to force religious communities to treat each member of the community in conformity with the laws of the nation-state. This is what happened with the judgment in the case of Shayara Bano. The different responses to both cases sum up the evolution of Indian society in the last three decades. While the NDA Government takes pride in taking a stand against triple talaq, it portrays how the changing socio-political dynamics in India, empowered Muslim women to confront the conservative-malignant elements in their community, engendering gender justice. Although according to Mukhtar Abbas Naqvi, there has been an 82% decline in triple talaq cases since the law was enacted by the Government, the evil practice is still vehemently prevalent raising issues for the society as the devil of prejudice will not and does not die without a furious fight.
Editor’s Note This article discusses the controversial topic of Triple Talaq and its journey through landmark judicial pronouncements. The author has compared the different responses to the two landmark judgments related to triple talaq in the last three decades. The author has also thrown light on the issue as to what extent the Judiciary can intervene in the personal laws of the citizens. The concept of the Uniform Civil Code as mentioned under Article 44 of the Constitution of India has also been discussed. The author opines that in a secular democracy like India if a community does not give equal rights to all members of that group, the State must interfere. Lastly, the author has concluded by saying that even though legislations are in place concerning triple talaq, the evil still prevails in society and it will not go without a tough fight.