Shayara Bano vs Union of India - Supreme Court Important Judgment

 Shayara Bano vs Union of India - Supreme Court Important Judgment 2017 - 

 

On 22nd August, 2017, in the case of Shayara Bano v. Union of India and Others [Writ Petition (C) No. 118 of 2016], by a majority of 3:2, the Supreme Court set aside “the practice of ‘talaq-e-biddat’ – triple talaq”. The majority view was recorded in a common judgment of two Hon’ble Judges and in a separate judgment delivered by a single Hon’ble Judge.


In the common judgment of two Hon’ble Judges, it was held that “given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place.” “It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India” and therefore, the Muslim Personal Law (Shariat) Application Act, 1937, “insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”


In the judgment delivered by the single Hon’ble Judge, it was held that “the Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” It was observed that “what is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” It was further held that the Muslim Personal Law (Shariat) Application Act, 1937 was enacted to put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim community, and that “the whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice.” It was observed that “merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. 

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