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PERSONAL LAW II

BACK PAPER PROJECT ON:

SHAYARA BANO VS. UNION OF INDIA (UOI) & OTHERS

SUBMITTED TO:

MR. OWAIS HASAN KHAN (PROFESSOR OF LAW)

MS. NIKITA PATTJOSHI (ASST. PROFESSOR OF LAW)

SUBMITTED BY:

HEMANT PRAJAPATI

2014(R)/ BA.LLB./017

SEMESTER – 7

FOURTH (IV) YEAR


INTRODUCTION

Shayara Bano, a 35-year-old woman from Uttarakhand, emerged as the defining persona in the
legal battle against the patriarchal custom that, though not as commonly followed, was judged
unconstitutional by the Supreme Court recently.

The fight against triple talaq, though supported by a number of women’s rights activists and
constant media attention, was led by the victims themselves.

Why this fight?

Ms. Bano was the original petitioner in the case after she approached the court in 2016
demanding that the talaq-e-biddat pronounced by her husband be declared as void. She also
contended that such unilateral, abrupt and irrevocable form of divorce be declared
unconstitutional, arguing that the practice of triple talaq violated the fundamental rights of
Muslim women.

“Since my student life, I didn’t like the anti-women social traditions like triple talaq and halala.
But when it happened to me... it [the dislike] grew. Normally, these things do not happen, but
when it hits you, you realize how bad this practice really is,” says Ms. Bano

What happened to her?

Her battle against triple talaq was spurred by her own experience. She was a victim of the
custom. Married in April 2001 to the Allahabad-based property dealer Rizwan Ahmed, she
endured domestic violence and physical torture at the hands of her husband and in-laws, who
allegedly demanded additional dowry and a car from her parents. Her father, a low-earning
government employee, had made special efforts to arrange her marriage beyond his capacity.
As per her claim, she was often beaten and kept hungry in a closed room for days. The final cut
came in October 2015, when her husband sent her a divorce note by speed post. The letter
contained a pronouncement of instant triple talaq. The custody of her two children, 11 and 13,
was kept by the husband. When something “so wrong” happened, she thought that there must be
a law to prevent this.

Did she face challenges?

It was never going to be easy for Ms. Bano and the other women to garner support from the
community as they were seen challenging the male dominance of Shariat laws, and was
suspected by a section of anti-BJP groups and male Muslim intelligentsia of playing into the
saffron party’s strategy to communalize the discourse ahead of the 2017 Assembly elections in
Uttar Pradesh. Ms. Bano says she faced several challenges during the course of her fight. The
biggest came in the form of mental harassment. A member of the AIMPLB asked her to
withdraw her case, saying she was going against Islam.

Did she think of quitting?

Though she felt discouraged, the thought of giving up the fight didn’t occur to her even once.
Ms. Bano is thankful to the women activists who supported the cause, her lawyers and the media
for highlighting her experience. However, the biggest source of support came from her family,
especially her father and brother.

Her legal battle received more coverage after other victims of triple talaq also approached the
court, though she was the first petitioner.

Ms. Bano, who completed her M.A. before marriage, is now pursuing an MBA, for which she
regularly attends classes. She hopes to get employed some-day.
What does it mean to women?

Described as historic, women activists believe it is a step forward in the empowerment of


Muslim women in India.

Ms. Bano says that though the ruling will be beneficial to Muslim women and help them avail
themselves of maintenance, the real change will come only when a law is enacted making
arbitrary talaq illegal.

Ms. Bano says her fight is against the social customs that give men power to abandon women on
a whim, sometimes through a flimsy text message or a phone call. Women who received triple
talaq lived worse than dogs and without maintenance, she points out.

She has appealed to the BJP government not to take undue credit for the decision or politicise it.
“It was a social fight, not a political one. It should not be made into a political agenda,” Ms.
Bano insists
The judgment in Shayara Bano does not change the legal position of Instant Triple Talaq that
existed before, but creates confusion on the constitutional status of personal law, and misses a
great opportunity to elaborate on the constitutional vision of justice for women from minority
religious groups.

The Supreme Court’s 22 August judgment in Shayara Bano v Union of India (2017), has been
described by many commentators as the Court declaring the practice of instant and triple talaq
(or divorce, hereinafter ITT) to be “unconstitutional". Such a description of the judgment is
incorrect.

The judgment is made up of three separate opinions: one by Chief Justice Jagdish S Khehar and
Justice S Abdul Nazeer; one by Justice Kurian Thomas; and one by Justices Rohinton F Nariman
and Uday U Lalit.

The three opinions concur on some issues and differ on others. This makes the task of figuring
out the judgment’s exact holding a difficult and confusing exercise. Carefully tracing the
convergences and divergences leads one to conclude that the majority faulted ITT and “set it
aside” not because it was found to be unconstitutional, but rather on the grounds that it was un-
Islamic. What is more, even with a five-judge bench decision, the constitutional status of
personal law remains as uncertain as before, which makes the prospects of any future attempt to
change discriminatory personal law provisions by challenging their constitutional validity,
difficult.
BRIEF BACKGROUND

To go over the facts briefly, Shayara Bano, a woman survivor of domestic violence and dowry
harassment had been unilaterally divorced through ITT. She filed a petition before the Supreme
Court seeking a declaration that the practices of ITT, polygamy, and nikah halala in Muslim
personal law were illegal, unconstitutional, and in violation of Articles 14 (equality before law),
15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience and
religion) of the Indian Constitution.

The Court however chose to examine the issue of ITT alone. The Union of India supported the
petition. Among the others who intervened in this case, the All India Muslim Personal Law
Board and the Jamiat Ulema-e-Hind argued that the Court did not have jurisdiction to entertain a
constitutional challenge to Muslim personal law and that the matter was in the domain of the
legislature.

The Bebaak Collective and the Centre for Study of Society and Secularism – two organization’s
working with Muslim women – supported the petition and urged the Court to declare that
personal law was subject to the Fundamental Rights. Bharatiya Muslim Mahila Andolan and
Majlis – also women’s rights organization’s – argued that in view of previous decisions of the
Court, the bench need not consider the question whether constitutional validity of ITT, but
should rather emphasise the existing legal remedies.

As has been pointed out by many commentators throughout the course of this case, ITT lacked
legal validity even before this petition was filed, though it had not been declared
“unconstitutional” by any court. Since the 1980s, a number of high courts had held that for talaq
to be valid, it must be pronounced for a reasonable cause, and must be preceded by attempts at
reconciliation facilitated by mediators representing both parties.

On this view, though widely invoked by husbands and authorized by the clerics, ITT was already
illegal. In an earlier piece in this journal commenting on Shayara Bano’s petition, I had
written,“…far from being rooted solely in religion, two out of the three provisions of Muslim
personal law under scrutiny in this case already exist in a framework shaped by secular
considerations such as reasonableness, equity and state policy favoring monogamy as a matter of
“social reform”.

And yet, uncertainty persists over whether personal laws are truly “laws” that can be examined
through the lens of constitutional ideals of equality, non-discrimination and dignity.” (Mandal
2016)The issue goes back to a 1951 Bombay High Court judgment in the case,

State of Bombay v Narasu Appa Mali (1952), where a two-judge bench had held that personal
law was not covered by the phrase “laws in force” used by the Constitution in Article 13 to
denote all those pre-constitutional enactments which were “in force” at the time of adopting the
Constitution, and which were subject to the Fundamental Rights. The two judges held that this
was because the source of personal law was religion rather than the state. The foundations of this
judgment have been criticized by eminent legal scholars like H.M. Seervai (2015) and A M
Bhattacharjee (2016). Several high court benches have also called for its reconsideration.

The Supreme Court affirmed it in the 1980 judgment Sri Krishna Singh v Mathura Ahir (1980),
then implicitly overturned it in the 1996 judgment C Masilamani Mudaliar and Others v The Idol
of Swaminatha Swaminatha swami Thirukoil (1997) and then upheld it again in the 1997
judgment Ahmedabad Women’s Action Group v Union of India (1997). Thus, Shayara Bano’s
case was important not just for how the Court decided her immediate claims, but also because it
offered an opportunity for a five-judge bench of the Supreme Court to clarify the constitutional
status of personal law.
TRIPLE TALAQ AS RELIGIOUS FAITH

The two two-judge opinions in the Shayara case take diametrically opposite approaches to the
question of constitutionality. Justice Khehar’s opinion to which Justice Nazeer joins, takes the
view that those parts of Muslim personal law on which the state has enacted a law – such as the
Dissolution of Muslim Marriage Act, 1939 or the Muslim Women’s (Protection of Rights on
Divorce) Act, 1986 – can be tested for compliance with the Fundamental Rights, but those parts
that were uncodified cannot be. He bases this on the view that the Muslim Personal Law
(Shariat) Application Act, 1937, which provided that Shariat was the only law applicable to the
Muslims and not customary law, had a limited purpose. That limited purpose, according to
Khehar, was to only state that customary law was not applicable to the Muslims in matters of
marriage, divorce, inheritance, and so on. The 1937 Act did not automatically bring the
uncodified part of Muslim personal law within the state’s jurisdiction, and as a result, it did not
come within the phrase “laws in force” in Article 13 of the Constitution.

Thus, Khehar affirms the Narasu judgment. Although the Union of India had urged that the
judgment should be reconsidered, Khehar refrains from doing so, stating that the bench cannot
do this as it had been upheld earlier by Supreme Court benches of the same strength. This is
incorrect, as both the instances where Narasu was upheld were two-judge benches. Khehar
further immunises Muslim personal law from constitutional challenge by holding that it is
protected as a matter of religious freedom under Article 25. Specifically on ITT, the judge holds
that it had been practiced by the Sunni community for centuries, which made it part of their
religious faith and was protected from interference by the Court. Curiously, in framing the issue
thus, he gives up his earlier distinction between codified and uncodified laws, and goes on to
hold the entire category of personal law to be immune from constitutional challenge. He
concludes that only the state canbring changes in the domain of personal law through legislation
within permissible limits of Article 25 and trump the interest of religious freedom. Justices
Khehar and Nazeer therefore deny the petition, and direct the state to legislate on the issue within
six months.
TRIPLE TALAQ AS MANIFEST ARBITRARINESS

Justices Nariman’s opinion with which Justice Lalit concurs goes in the opposite direction.
Nariman takes the view that the function performed by the 1937 Act was not only to abrogate the
application of customary law to Muslims. It also performed a positive function, in that it also
provided what was the applicable law.

The entity “Muslim personal law” according to on this view, was brought into existence by the
state in exercise of its civil authority, which brought it squarely within the phrase “laws in force”
in Article 13. Thus, according to Nariman, even uncodified Muslim personal law can be tested
for compliance with the Fundamental Rights. The judge contradicts the rationale on which
Narasu was based. Further, he sets aside an earlier two-judge bench decision of the Supreme
Court that had relied on Narasu. But curiously, having rejected Narasu in both substance and
application, he notes that the question of whether Narasu is still valid law should be examined in
a “suitable case”.

The centerpiece of Justice Nariman’s opinion is the position that what is “manifestly arbitrary” is
also unreasonable and can be struck down under Article 14, which is concerned with equality
before law and equal protection of the laws. Justice Nariman notes that ITT is an “irregular or
heretical form of talaq” since though lawful, it is considered to be incurring the wrath of God.
For him, the arbitrariness of IIT, when seen through the lens of constitutional reasoning, its
arbitrariness is thrown into sharper focus.

The judge concludes: “…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.” (Shayara Bano v Union of India 2017: para 57)

Thus, in Nariman’s analysis, the religion-based finding that ITT was irregular and sinful,
coincided with the constitutional reasoning-based finding that ITT was manifestly arbitrary.
Justices Nariman and Lalit therefore struck down the 1937 Act, to the extent that it recognized
ITT.
TRIPLE TALAQ AS UN-ISLAMIC

Justice Joseph does not fully join either of the above positions, but follows a different path. On
the question of the nature of the 1937 Act, he agrees with Justice Khehar and disagrees with
Justice Nariman. Thus, though he agrees with Justice Nariman’s view of arbitrariness as an
appropriate test for Article 14, he holds that the 1937 Act cannot be subjected to it. But he
disagrees with Justice Khehar too.

Justice Khehar held against determining the validity of ITT by referring to the Hadiths, as he felt
that it was beyond the judicial role and expertise. Justice Joseph on the other hand is of the
opinion that the 1937 Act, having declared Shariat to be the law applicable to Muslims, had
essentially left it to the judges to find out what the Shariat said on an issue.

Therefore, leaving the question of constitutionality aside, what he pursues in his opinion is:
“...whether what is Quranically wrong can be legally right …. The simple question that needs to
be answered in this case is only whether triple talaq has any legal sanctity.”

(Shayara Bano v Union of India 2017: para 1) -- His reading of the relevant verses leads him to
conclude that “an attempt for reconciliation and if it succeeds, then revocation are the Quranic
essential steps before talaq attains finality” (Shayara Bano v Union of India 2017: para 10).

This was the view adopted by a number of high courts since the 1980s and this was endorsed by
the Supreme Court in Shamim Ara v State of UP in 2002. Further, between 2002 and 2017, a
number of high court benches had relied on the Shamim Ara case and invalidated ITT.

Thus, Justice Joseph disagrees with Justice Khehar on two more points: one that Shamim Ara
dealt with the valid procedure for talaq in general, but did not contain a rule on ITT and two, that
ITT was integral to the religious faith of the Muslims. On the first, he notes that Shamim Ara had
effectively invalidated ITT, though it did not say it in so many words.
On the second issue, he notes that since the purpose of the 1937 Act was to abolish customs that
were contrary to Shariat and ITT was contrary to the Quranic tenets, it was abolished by the 1937
Act. Hence, it could not be said to be an integral part of the Muslim faith and could not be
immunized by resorting to Article 25.

Here, he again disagrees with Justice Nariman, who held that the 1937 Act authorized ITT.
Justice Joseph reiterates that the Shamim Ara judgment be upheld and finds ITT to be lacking
legal validity, concluding, “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.” (Shayara Bano v Union of India
2017: para 26)
CONCLUSION

Having laid out the differences in the three opinions above, we find very few points on which a
clear majority position emerges. Even when the judges agree on the outcome, they do so for
different reasons.

Justices Nariman and Lalit find ITT to be un-Islamic and unconstitutional. Justice Joseph does
not go into the question of constitutionality, but finds IIT to be un-Islamic and hence, invalid.
Thus, by no means can it be concluded that in Shayara Bano, the Court has declared ITT to be
unconstitutional. On the issue of the constitutional status of personal law, we find an utterly
confusing judgment.

Two judges hold at one point that uncodified personal law is beyond the scope of the
Fundamental Rights, but following rather dubious logic, hold at a later point that the entire
domain of personal law is protected as a matter of religious freedom, and they affirm Narasu.
Two other judges hold personal law to be subject to the Fundamental Rights, but they do not
explicitly set aside Narasu.

One judge rejects the proposition that uncodified Muslim personal law can be tested against
Fundamental Rights, rejects that it is protected by religious freedom, acknowledges the ghost of
Narasu, but avoids the issue altogether.

Arguably, Justice Joseph’s approach to the problem shows that it could have been tackled even
without a constitutional challenge. But since the petitioners had raised the issue of
constitutionality, the judges could have addressed the issue more thoughtfully.

In the final analysis, the judgment in Shayara Bano does not change the legal position of ITT that
existed before, but creates confusion on the constitutional status of personal law and misses a
great opportunity to elaborate on the constitutional vision of justice for women from minority
religious groups. I thank Jhuma Sen for discussions and disagreements over the judgment