Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-bidat (triple talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word ‘talaq’ (Arabic for divorce) three times at once in oral, written or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) – were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India (Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition underscored how protection against these practices has profound consequences for ensuring a life of dignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.
In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a majority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two held it to be unconstitutional while the third relied on case precedents to reiterate that such practice was impermissible under Islamic law.
The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.
https://www.escr-net.org/caselaw/2018/shayara-bano-and-others-v-union-india-and-others-writ-petition-c-no-118-2016
