The supreme court gave a verdict in the Shayara Bano vs Union India and along with other writs, that “Triple Talaq” is unconstitutional and has asked the government to come up with a bill to criminalize the practice. It was not an unanimous decision but 3-2 in the favor of the petitioner.
The petitioner sought a declaration from the court, that the ‘talaq-ebiddat’ pronounced by her husband be void ab-initio. She pleaded that the practice were abandoned in many Muslim countries because it goes against the fundamental rights guaranteed to them by their constitution.
The respondent Rizwan Ahmed responded by producing a deed of Triple Talaq to the court expressing that the marriage fulfilled all the criteria for a valid divorce, under the Hanafi sect of Sunni Muslims, and is in consonance with ‘Shariat’ (Muslim
In the part 2 of the judgment, the supreme court then deals with the marriages system under Muslim law. The judgement says, “‘Talaq’, namely, divorce at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’. The petitioner’s contention before this Court is, that ‘talaq-e-ahsan’, and ‘talaqe-hasan’ are both approved by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is considered as the ‘most reasonable’ form of divorce, whereas, ‘talaq-ehasan’ is also considered as ‘reasonable’. It was submitted, that ‘talaq-ebiddat’ is neither recognized by the ‘Quran’ nor by ‘hadith’, and as such, is to be considered as sacrosanctal to Muslim religion.”
The talaq-e-ashan and talaq-e-hasan is revocable form of divorce because the divorce can be revoked or cancelled but the “talaq-e-biddat” is irrevocable because saying talaq talaq talaq is strong ground for permanent divorce with no grounds for reconciliation like the former two.
In the part 5 of the Shayara Bano case judgement, the court explains the “Aborgation of triple talaq in many Muslim countries through legislation. The cited countries are Algeria, Iran, Egypt, Jordan, Kuwait, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, UAE, Yemen, Indonesia, Malaysia, Philippines, Pakistan and Bangladesh, and Sri-Lanka and how they have ended the system of triple talaq through their legislation.
In part 10 of the decision of the case, the court reiterates that the triple talaq case was a hot issue debated in the media. In the same part, paragraph 197, it states, “The reason for us to probe the possibility of exercising our jurisdiction under Article 142, arises only for one simple reason, that all concerned are unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’ is gender discriminatory. “
The court further added, “There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation.”
The line above literally means that the judges were not willing to play the role of judicial activist as they tended to divert the role of legislation to make laws and not the court.
But in the pursuant paragraph that followed, the court cited that AIMPLB (All India Muslim Personal Law Board) affidavit of issuing advice on the issue of “nikaha-nama” to include the person performing the marriage of both parties to incorporate a condition in their nikaha to not resort to triple talaq as the means of dissolution of the marriage.
Pursuant to the affidavit of the AIMPLB, the court reached to the conclusion that it now has the capacity to give direction to the government to pursue legislation for the tala-e-biddat.
After the above decision, BJP legislated a bill, “The Muslim Women (Protection of Rights on Marriage) Bill, 2019” and got it passed from the Rajya Sabha on 30th July 2019. The bill then got the assent of president Ram Nath Kovind on 31st July 2019 and has come to full effect.