By Muskan Hossain
Abstract
The year 2017 witnessed a pivotal landmark in the legal- and social struggles- of Muslim women’s rights through the Shayara Bano v. Union of India case which led to the abolition of talaq-e-bid’ah (triple talaq) in the nation. This article looks closely at the monumental case’s background, Shayara Bano’s petition along with the Supreme Court’s ruling. Further, it explores the socio-legal impact of the SC’s verdict, which declared the act unconstitutional. By using the case study the article looks into whether the abolition of the triple talaq was a genuine watershed moment for Indian Muslim women, or if it was merely a symbolic reform.
Introduction
The Shayara Bano v. Union of India case in 2017 marked a watershed moment in the legal and social struggles for Muslim women’s rights, resulting in the abolition of talaq-e-bid’ah in the country. The case opposed the practice of talaq-e-bid’ah, which is much more commonly known as the triple talaq, an act that allowed Muslim men to divorce their wives instantaneously by saying the word ‘talaq’ (divorce) three times out loud. According to the Press Information Bureau, while performing this act “the man need not cite any reason for the divorce, and the wife need not be present at the time of pronouncement of talaq”. In August 2017, the Supreme Court declared the practice as unconstitutional and in violation of Article 14 of the Indian Constitution. Many viewed the ruling as a win for gender equality and justice, however; others critiqued it as punitive rather than reformative. So, was the banning of the triple talaq an amendatory legal victory, or just a partial reform?
Background on Triple Talaq
According to an article by the BBC, triple talaq “allows a husband to divorce his wife by repeating the word “talaq” (divorce) three times in any form, including email or text message.” Unlike other forms of Islamic divorce like talaq-ul-sunnat or mubarat, this does not require arbitration or a waiting period. This left Muslim women vulnerable to sudden abandonment, often without any financial or legal support.
Most notably, talaq-e-bid’ah is not a valid practice in Islam, and is also banned in Muslim-majority countries such as Saudi Arabia, Morocco, Afghanistan and Pakistan. Since the talaq is against the essence of Shari’ah, a husband who divorces his wife using this act “is an offender in the eye of Islamic Law”.
The practice was defended by the All India Muslim Personal Law Board (AIMPLB), citing that any government intervention in religious personal laws disrupts Article 25 of the Constitution, which grants the “freedom of conscience and free profession, practice and propagation of religion”. However, the opposition- like activists, jurists and legal scholars asserted that it violated fundamental human rights as well as Article 14– “equality before law” and Article 15– “prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”, which made a strong basis for its abolition.
Shayara Bano’s Case
A woman from Uttarakhand, Shayara Bano, became the face of the movement against triple talaq after her husband, Rizwan Ahmed, divorced her in 2015. Married to Ahmed in April 2001, Bano claimed that her family was forced to give dowry for the marriage, and she suffered mental and physical abuse by her husband and in-laws throughout the course of the marriage. She was abandoned by them after being dragged and abused for not providing additional dowry.
In October 2015, Rizwan Ahmed divorced Shayara Bano using the form of triple talaq in front of two witnesses, and also denied her custody of their two children. Bano filed a writ petition at the Supreme Court in February 2016, challenging the practice of triple talaq itself, along with polygamy and nikah-halala. She claimed that these practices go against the Right to Equality, the Right against Discrimination and the Right to Livelihood, while also asserting that they do not come under the protection of the Right to Freedom of Religion.
Her petition was backed by multiple women’s rights organizations and prominent activists such as the Bebaak Collective and the Bhartiya Muslim Mahila Andolan, as well as the Union Government.
Supreme Court Verdict
In March 2017, a 5-Judge Constitution Bench was created by the SC to assess the matter. The case was presented to the Bench between May 11th and May 19th, 2017 and then they presented their verdict on August 22nd. In a 3:2 ratio, the Bench announced with a majority that the practice of talaq-e-bid’ah was “manifestly arbitrary” and unconstitutional.
For one to fully understand the socio-legal impact of the hearing, it is important to note the key observations. Firstly, the practice was deemed to be capricious and against the basis of gender equality. Secondly, the majority (comprising Justices Kurian Joseph, R.F. Nariman and U.U Lalit) opinion stated that this was not an essential practice of Islam and could not be protected by Article 25. Finally, the minority (Chief Justice J.S. Khehar and Justice S. Abdul Nazeer) argued that the reform in personal law should not be subject to intervention.
However, even after the Supreme Court’s declaration of deeming the act of triple talaq as unconstitutional, the practice still continued largely. From the date of the SC’s judgment up to the introduction of the Muslim Women (Protection of Rights on Marriage) Bill, 2017 on December 28th, 2017, there were approximately 100 cases reported in the country.
Impact of the Judgement
The ruling of the Supreme Court was widely celebrated as a step towards legal equality for Muslim women in India, especially in light of the multiple layers of oppression they face due to the intersection of gender, religion and socio-economic status. Muslim women in India face systemic oppression not only because of the patriarchal interpretations of religious laws, but also due to institutional discrimination of women.
This abolition of the act of triple talaq was not just a legal victory, but just the first step forward in addressing structural inequalities that limit Muslim women’s agency, rights and autonomy of their own self. By opposing such an ingrained practice, this particular ruling opened new avenues for further legal reforms aimed at dismantling gender-based oppression with personal laws. However, the absence of immediate legislative measures created a vacuum for the women that have been affected by triple talaq in the past. This led to the creation of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
The act made triple talaq a punishable offense with the person practicing it facing up to three years in prison. However, it also drew significant criticism. For instance, some argued that criminalization disproportionately targeted Muslim men. Many legal experts also questioned whether imprisonment was an appropriate penalty for a civil matter. Moreover, many concerns were also raised over the political motivations behind the law, due to the religious tensions being high at the time because of multiple reasons like the Ayodhya Verdict, the revocation of Article 370 and rise in cases related to Cow Vigilantism and Lynchings.
Current Debates
Despite the abolition of talaq-e-bid’ah, Indian Muslim women continue to face challenges and exist as second-class citizens under personal laws, specifically when it comes to issues such as inheritance, polygamy and maintenance after divorce. There is also a much larger debate, on a Uniform Civil Code that still remains in question. While many argue that a UCC would maintain equal rights for all citizens, others believe that it intervenes with and harms religious and cultural diversity in the subcontinent.
Furthermore, while the legal landscape has evolved to some extent due to this verdict, societal attitudes still often lag behind. Many Muslim women in India, still struggle to enforce their basic rights due to a lack of financial support and independence, limited legal awareness and the stigmas that they face in their communities.
Conclusion
The Shayara Bano case undoubtedly marked a vital step in Muslim women’s legal rights, but was it really effective? The question remains debated. The abolition of triple talaq was necessary, but the criminalization approach raises questions. While the verdict and the bill following it addressed one aspect of gender inequality, broader reforms in Muslim personal law are still very much needed in order to ensure real empowerment and equality for Indian Muslim women. Further legal interventions should prioritise women’s rights while also maintaining a balance between religious freedoms and constitutional guarantees of equality.
Author’s Bio: Muskan Hossain is a second year student pursuing a BA (Hons.) Liberal Arts and Humanities, majoring in Political Science and Humanities at OP Jindal Global University. An avid reader, and an aspiring journalist, her interests lie gender studies, global affairs, and history.
Image Source: https://www.thehindu.com/news/national/who-is-shayara-bano-the-triple-talaq-crusader/article61477439.ece
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