SHAYARA BANO

SHAYARA BANO V UNION OF INDIA (Triple talaq case)

JUDGEMENTS Landmark Judgements
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Petitioner                          …………   Shayara Bano

Respondent                      …………. 1) Rizwan Ahmed

                                                      2) Union of India

                                                           3) Ministry of law and Justice

                                                           4) Ministry of women and child Development

                                                           5) Ministry of Minority Affairs

                                                           6) National Commission for Women

                                                           7) All India Muslim Personal Law Board

EQUIVALENT CITATION– (2007) 9 SCC1Writ Petition (C) No. 118 of 2016.

BENCH:-

  1. Chief Justice Jagdish Kehar.
  2. Justice Abdul Nazeer.
  3. Justice Kurian Joseph.
  4. Justice Rohinton Nariman.
  5. Justice U U lalit.

DATE OF JUDGEMENTS:-  August 22, 2017.

FACTS

After living together for 15 years, Rizwan Ahmed decided to end their marriage by delivering a Talaq-Nama to Shayara Bano house. There were many claims made by Rizwan Ahmed on his Talaq-Nama which according to Shayara Bano were false and Shayara Bano felt that she is the one who has suffered the most, she should get justice so she decided to file a petition on the court on a feeling that by giving Instant Triple Talaq her Fundamental rights were violated.

ISSUE RAISED

Shayara Bano challenged Instant Triple Talaq, Nikah Halala and Polygamy in her petition. She also said that Triple Talaq also violated the fundamental rights of women under Article 14, Article 15, Article 21, and Article 25

ARGUMENTS

There are two sides of the story, both the respondent and the petitioner has said a different story from their respective side lets first see what did Rizwan Ahmed said that they both solemnized their marriage on 11/04/2001 and they lived happily at the beginning Shayara Bano left her paternal home and started to live with Rizwan Ahmed and they both together had two children namely Mohammed Irfan age-13 years and Umaira Naaz age-11 years.

They were living peace fully until one day when Shayara Bano decided to go to her paternal home with both the children and her father (Iqbal Ahmed)  and her maternal uncle (Raees Ahmed), Rizwan being a responsible father and husband kept visiting her to give her maintenance and to visit his children, he said many times to Shayara Bano to come home with him to return with her but she everytime gave some excuse, he also said that to her father to send her home but after some days her father said that, “ She is not inclined to live with you anymore”. After some days her father brought both the kids to Allahabad and told him to take care of both children, Rizwan again asked Shayara to return to their home but she refused to do so.

So he filed a petition to seek restriction of conjugal rights, he filed this petition in Court of the Principal Judge, Family Court Allahabad, Uttar Pradesh. Shayara Bano preferred the transfer of the petition to Family Court, Kashipur, Uttrakhand.

Now lets see what she said about her marriage.

In the transfer petition she wrote that:- She is from Kashipur, Uttrakhand and she belongs to a very poor family her father is only earning member of the family at the time of marriage her father made arrangements beyond her capacity but soon after marriage husband started demanding for dowry and made unreasonable demand for cash and car. She denied all those demands she was continuously torched and beaten by her husband and husband family members, she was beaten and kept hungry in a closed room for several days.

Rizwan and his family fed her medicines which caused her memory to fade and she used to remain unconscious for hours, doctor later found out that she was telling the truth about the medicines Doctors even added that those medicines would cause her loss of mental balance after daily consumptions, he even tried to kill her by administering the medicines and bought her to Moradabad in critical near-death situation with intention of abandoning her if his dowry demands are not fulfilled, her parents after listening to his unreasonable demands took her back to her back to stay with them.

After this statement by Shayara Bano, Rizwan felt that her wife is not ready for reconciliation and therefore he withdrew the suit but later decided to divorce her by producing a ‘Talaq-Nama’. In which he stated that after marriage Shayara Bano lived happily at first but later forced and mentally pressured her husband to live separately from his parents and because of that Rizwan did rent a house in Mohalla Ghausnagar.

But still, she continued with her unreasonable reason quarrel and fight in the house and started to mentally torture him, later after talking with her father he came to know that she was under medication before marriage, that medication was related to her mental condition of which he was not aware of and children come to his house till summer vacation to get refreshed, she did go and after many attempts from him to bring her back to their house she refused every time by giving some excuse and later her father dropped their children to Allahabad railway station he said, ‘I give Talaq’, ‘I give Talaq’, ‘I give Talaq’. He ended their relationship.

JUDGEMENTS

Supreme Court raised some issues in front of the respondents or we can say that some important questions were asked by Supreme Court.

  • Whether Instant Triple Talaq is an essential religious practice of Islam
  • Whether the practice of Triple Talaq is Violative of Fundamental Right.

Chief Justice Jagdish Kehar and Justice Abdul Nazeer said that Triple Talaq is a part of Muslim Personal Law and Article 25 gives freedom to an individual to practice any religion an individual wants. These practices are protected under Article 25 and therefore Supreme Court cannot interfere in these practices, question which is raised here is whether Triple Talaq should be allowed to practice or not, they both suggested that parliament should make the call, parliament should decided whether to allow or stop the practice of Triple Talaq, all they can do is put a stay in Triple Talaq for 6 months and in thse 6 months Parliament should decide what should be done.

Justice Rohinton Nariman and Justice U U Lalit both said that any practice whether made before the constitution or after should not interfere or disturb individual fundamental rights and in this case, Triple Talaq practice was challenged in Article 14, Article 15, Article 21 and Article 25. Article 14 says that if any law violates the fundamental rights of an individual then the supreme court has the right to intervene and declare that law unconstitutional, in this case, Instant Triple Talaq violates the fundamental rights of women.

Justice Kurian Joseph said Triple Talaq is Un-Islamic practice as other forms of divorce in Islam which are considered and mostly preferred by Courts gives time for arbitration, reconciliation and settlement but Instant Triple Talaq does not have any scope for any of this. On basis of this Justice Kurian Joseph said that Instant Triple Talaq is not an essential part of Muslim Personal law.

Supreme Court suggested to parliament that they should bring a new law regarding this and in September 2018 an ordinance was passed and in July 2019 Bill was passed by both Lok Sabah and Rajya Sabah and it received the assets of the president.

PRINCIPLE LAID DOWN

Triple Talaq was made a cognizable offence and bail will only be granted by the Magistrate after he hears what the wife has to say, women and children will be given maintenance by the husband and custody of children will go to the wife.

SOURCE

  1. Arguments source https://indiankanoon.org/doc/115701246/.
  2. https://youtu.be/Id5lY5ce53w.

-Vaibhav Prakash  

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SHAYARA BANO V UNION OF INDIA (Triple talaq case) SHAYARA BANO V UNION OF INDIA (Triple talaq case) SHAYARA BANO V UNION OF INDIA (Triple talaq case)


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