LexSHAYARA BANO versus UNION OF INDIA AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
(2017] 9 S.C.R. 797 SHAYARA BANO v. UNION OF INDIA AND OTHERS (Writ Petition (C) No. 118 of2016) With Suo Motu Writ (C) No. 2 of2015 AUGUST 22, 2017 [JAGDISH SINGH KHEHAR, CJI, KURIAN JOSEPH, R. F. NARIMAN, UDAY .UMESH LALIT AND S. ABDUL NAZEER, JJ,j MAJORITY OPINION Muslim Law: Talaq-e-biddat - The practice of Talaq-e-biddat is set aside. (Per Court) ·Muslim Law: Talaq-e-biddat - Triple Tcllaq by a Muslim husband which severs the marital bond - Constitutionali~)I of - Held: A B c D In "Shamim Ara case, it was held that the correct law of Tc1laq as ordained by the Holy Qurnn is that, the Talaq must be for a reasonable cause and be preceded by attempts at reconciliation· between the husband and the wife by two arbiters - one .fi·om the E wife's fC1mily and the other from the husband's; if the attempts fail, Talaq may be effected" - Given the fact that Triple Talaq is instantaneous and irrevocable, it is obvious !hut any at/empt al reconciliation between the husband and wife by two arbiters from their fc1milies, which is essential to save the maritC1! lie, cannot ever p take place - 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 if - This form of Talaq must, there.fore, be held to be violative of the fundamental right contained under Art.14 of the Constitution of India - Therefore, the 193 7 Act, insofar c1s it seeks to recognize G and en.force Triple Tafaq, is within the meaning of the expression "laws in.force" in Art.13(1) and must be struck down as being void to the extent that it recogriizes and enf.orces Triple Ta/aq - Muslim Personal Laws (Shariat) Application Act, 1937 - s.2 - Constitution of India - Art.13(1). (Per Nariman, J.) H ' 797 798 SUPREME COURT REPORTS [2017] 9 S.C.R. A Muslim Law: Sunnis - Various sub-sects of Sunnis - Discussed. (Per Nariman, J,) Muslim Law: Various forms of divorce recognised in Islamic law - Discussed. (Per Nariman, J,) B Muslim Law: Triple Talaq - Legal sanctity and constitutional protection - Triple Talaq is n,ot an integral part of the religious practice - Merely because a practice has continued far long, that by itself cannot make it valid if it has been expressly declared to be impermissible - The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat c practices with respect to subjects enumerated in s.2 which include talaq - Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible - ., D Therefore, there cannot be any Constitutional protection to such a practice - Constitution of India - Art.25 - Muslim Personal Laws (Shariat) Application Act, 1937 - s.2. (Per Kurian, J,) Muslim Law: Whether what is wrong in Quran can be legally right - Held: 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. (Per Kurian, J,) E Constitution of India: Art.14 - When something is done by the legislature capriciously, irrationally and/or without adequate determining principle or which is excessive and disproportionate, such legislation would be manifestly arbitrary - Therefore, arbitrariness in the sense of manifest arbitrariness would apply to negate legislation as well under Art.14 -Applying the test of manifest F arbitrariness, it is clear that Triple Talaq is a form ofTalaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq - Muslim law. (Per Nariman, J.) Muslim Personal Laws (Shariat) Application Act, 1937: s.2 - G Whether the 1937 Act can be said to recognise and enforce Triple Talaq as a rule of law to be followed by the courts in India - Held: The 1937 Act is a pre-constitutional legislative measure which would fall directly within Art.13(1) of the Constitution of India - True, the Objects and Reasons of a statute throw light on the background H in which the statute was enacted, but it is difficult to read the non- SHAYARA BANO v. UNION OF IN.PIA AND OTHERS · 799 obstante clause of s.2 as governing the enacting part of the A section - It is, therefore, clear that all forms of Talaq recognized and e11forced by Muslim personal law are recognized and enforced by the 1937 Act - Thi
Excerpt shown. Read the full judgment & AI analysis in Lexace.