Case Description

A Constitution Bench has declared that the practice of instantaneous Triple Talaq is unconstitutional.

Background

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution.

Talaq-e- bidat is a practise which gives a man the right to divorce to his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent. Nikah Halala is a practise where a divorced woman who wants to remarry her husband would have to marry, and obtain divorce, from a second husband before she can go back to her first husband. And polygamy is a practice which allows Muslim men to have more than one wife.

On 16th February 2017, the Court asked Shayara Bano, the Union of India, various women’ rights bodies, and the All India Muslim Personal Law Board (AIMPLB) to give written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy. The Union of India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA) supported the Ms Bano's plea that these practices are unconstitutional. The AIMPLB has argued that uncodified Muslim personal law is not subject to constitutional judicial review and that these are essential practices of the Islamic religion and protected under Article 25 of the Constitution.

After accepting the Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional bench on 30th March 2017. The first hearing was on 11th May 2017. On 22nd August 2017, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring that the practice was unconstitutional by a 3:2 majority.

Issues

Whether the practice of talaq-e-bidat (specifically - instantaneous triple talaq) an essential practice of Islam?

Whether the practice of Triple Talaq violates any fundamental right.

Judges

Concurring

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