# 9 S.C.R. 797 SHAYARA BANO v. UNION OF INDIA AND OTHERS

- **Citation:** [2017] 9 S.C.R. 797
- **Court:** Supreme Court of India
- **Decided:** 2017-08-22
- **Bench:** Jagdish Singh Khehar, Kurian Joseph, R. F. Nariman, Uday .Umesh Lalit, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-797-shayara-bano-v-union-of-india-and-others-32515
- **Pages:** 362

## Headnote

MAJORITY OPINION
Muslim Law: Talaq-e-biddat - The practice of Talaq-e-biddat
is set aside. (Per Court)
·Muslim Law: Talaq-e-biddat - Triple Tcllaq by a Muslim
husband which severs the marital bond -
Constitutionali~)I of - Held:
A
B
c
D
In "Shamim Ara case, it was held that the correct law of Tc1laq as
ordained by the Holy Qurnn is that, the Talaq must be for a
reasonable cause and be preceded by attempts at reconciliation·
between the husband and the wife by two arbiters - one .fi·om the
E
wife's fC1mily and the other from the husband's; if the attempts fail,
Talaq may be effected" - Given the fact that Triple Talaq is
instantaneous and irrevocable, it is obvious !hut any at/empt al
reconciliation between the husband and wife by two arbiters from
their fc1milies, which is essential to save the maritC1! lie, cannot ever
p
take place - 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 if
- This form of Talaq must, there.fore, be held to be violative of the
fundamental right contained under Art.14 of the Constitution of
India - Therefore, the 193 7 Act, insofar c1s it seeks to recognize G
and en.force Triple Tafaq, is within the meaning of the expression
"laws in.force" in Art.13(1) and must be struck down as being void
to the extent that it recogriizes and enf.orces Triple Ta/aq - Muslim
Personal Laws (Shariat) Application Act, 1937 - s.2 - Constitution
of India - Art.13(1). (Per Nariman, J.)
H
'
797
798
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
Muslim Law: Sunnis -
Various sub-sects of Sunnis -
Discussed. (Per Nariman, J,)
Muslim Law: Various forms of divorce recognised in Islamic
law - Discussed. (Per Nariman, J,)
B
Muslim Law: Triple Talaq - Legal sanctity and constitutional
protection - Triple Talaq is n,ot an integral part of the religious
practice - Merely because a practice has continued far long, that
by itself cannot make it valid if it has been expressly declared to be
impermissible - The whole purpose of the 1937 Act was to declare
Shariat as the rule of decision and to discontinue anti-Shariat
c practices with respect to subjects enumerated in s.2 which include
talaq - Therefore, in any case, after the introduction of the 1937
Act, no practice against the tenets of Quran is permissible -
.,
D
Therefore, there cannot be any Constitutional protection to such a
practice - Constitution of India - Art.25 - Muslim Personal Laws
(Shariat) Application Act, 1937 - s.2. (Per Kurian, J,)
Muslim Law: Whether what is wrong in Quran can be legally
right - Held: 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. (Per Kurian, J,)
E
Constitution of India: Art.14 - When something is done by
the legislature capriciously, irrationally and/or without adequate
determining principle or which is excessive and disproportionate,
such legislation would be manifestly arbitrary - Therefore,
arbitrariness in the sense of manifest arbitrariness would apply to
negate legislation as well under Art.14 -Applying the test of manifest
F arbitrariness, it is clear that Triple Talaq is a form ofTalaq which is
itself considered to be something innovative, namely, that it is not in
the Sunna, being an irregular or heretical form of Talaq - Muslim
law. (Per Nariman, J.)
Muslim Personal Laws (Shariat) Application Act, 1937: s.2 -
G Whether the 1937 Act can be said to recognise and enforce Triple
Talaq as a rule of law to be followed by the courts in India - Held:
The 1937 Act is a pre-constitutional legislative measure which would
fall directly within Art.13(1) of the Constitution of India -
True,
the Objects and Reasons of a statute throw light on the background
H in which the statute was enacted, but it is difficult to read the non-
SHAYARA BANO v. UNION OF IN.PIA AND OTHERS
· 799
obstante clause of s.2 as governing the enacting part of th

## Text

_Characters 0–39,914 of 836,145. This is a partial read: ask again with offset=39914 for what follows._

(2017] 9 S.C.R. 797
SHAYARA BANO
v.
UNION OF INDIA AND OTHERS
(Writ Petition (C) No. 118 of2016)
With
Suo Motu Writ (C) No. 2 of2015
AUGUST 22, 2017
[JAGDISH SINGH KHEHAR, CJI, KURIAN JOSEPH,
R. F. NARIMAN, UDAY .UMESH LALIT
AND S. ABDUL NAZEER, JJ,j
MAJORITY OPINION
Muslim Law: Talaq-e-biddat - The practice of Talaq-e-biddat
is set aside. (Per Court)
·Muslim Law: Talaq-e-biddat - Triple Tcllaq by a Muslim
husband which severs the marital bond -
Constitutionali~)I of - Held:
A
B
c
D
In "Shamim Ara case, it was held that the correct law of Tc1laq as
ordained by the Holy Qurnn is that, the Talaq must be for a
reasonable cause and be preceded by attempts at reconciliation·
between the husband and the wife by two arbiters - one .fi·om the
E
wife's fC1mily and the other from the husband's; if the attempts fail,
Talaq may be effected" - Given the fact that Triple Talaq is
instantaneous and irrevocable, it is obvious !hut any at/empt al
reconciliation between the husband and wife by two arbiters from
their fc1milies, which is essential to save the maritC1! lie, cannot ever
p
take place - 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 if
- This form of Talaq must, there.fore, be held to be violative of the
fundamental right contained under Art.14 of the Constitution of
India - Therefore, the 193 7 Act, insofar c1s it seeks to recognize G
and en.force Triple Tafaq, is within the meaning of the expression
"laws in.force" in Art.13(1) and must be struck down as being void
to the extent that it recogriizes and enf.orces Triple Ta/aq - Muslim
Personal Laws (Shariat) Application Act, 1937 - s.2 - Constitution
of India - Art.13(1). (Per Nariman, J.)
H
'
797
798
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
Muslim Law: Sunnis -
Various sub-sects of Sunnis -
Discussed. (Per Nariman, J,)
Muslim Law: Various forms of divorce recognised in Islamic
law - Discussed. (Per Nariman, J,)
B
Muslim Law: Triple Talaq - Legal sanctity and constitutional
protection - Triple Talaq is n,ot an integral part of the religious
practice - Merely because a practice has continued far long, that
by itself cannot make it valid if it has been expressly declared to be
impermissible - The whole purpose of the 1937 Act was to declare
Shariat as the rule of decision and to discontinue anti-Shariat
c practices with respect to subjects enumerated in s.2 which include
talaq - Therefore, in any case, after the introduction of the 1937
Act, no practice against the tenets of Quran is permissible -
.,
D
Therefore, there cannot be any Constitutional protection to such a
practice - Constitution of India - Art.25 - Muslim Personal Laws
(Shariat) Application Act, 1937 - s.2. (Per Kurian, J,)
Muslim Law: Whether what is wrong in Quran can be legally
right - Held: 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. (Per Kurian, J,)
E
Constitution of India: Art.14 - When something is done by
the legislature capriciously, irrationally and/or without adequate
determining principle or which is excessive and disproportionate,
such legislation would be manifestly arbitrary - Therefore,
arbitrariness in the sense of manifest arbitrariness would apply to
negate legislation as well under Art.14 -Applying the test of manifest
F arbitrariness, it is clear that Triple Talaq is a form ofTalaq which is
itself considered to be something innovative, namely, that it is not in
the Sunna, being an irregular or heretical form of Talaq - Muslim
law. (Per Nariman, J.)
Muslim Personal Laws (Shariat) Application Act, 1937: s.2 -
G Whether the 1937 Act can be said to recognise and enforce Triple
Talaq as a rule of law to be followed by the courts in India - Held:
The 1937 Act is a pre-constitutional legislative measure which would
fall directly within Art.13(1) of the Constitution of India -
True,
the Objects and Reasons of a statute throw light on the background
H in which the statute was enacted, but it is difficult to read the non-
SHAYARA BANO v. UNION OF IN.PIA AND OTHERS
· 799
obstante clause of s.2 as governing the enacting part of the A
section - It is, therefore, clear that all forms of Talaq recognized
and e11forced by Muslim personal law are recognized and enforced
by the 1937 Act - This would necessarily include Triple Talaq when
..
it comes to the Mus/impersonal law applicable to Sunnis in India -
s.2 recognizes or enforces Triple Talaq because the Section makes B
Triple Talaq "the rule of decision in cases where the parties are
Muslims"-. Thus, the 1937 Act is a law made by the legislature
before the Constitution came into force, it would fall squarely within
the expression "laws in force" in Art.13(3)(b) and would be hit by
Art.13(1) if found to be inconsistent with the provisions of Part Ill
of the Constitution, to the extent of such inconsistency - Constitution C
of India -Arts.13(1), 13(3)(b). (Per Nariman, J.)
Muslim Personal Laws (Shariat) Application Act, 1937: s.2 -
Law applicable to Muslim shall be only their personal law namely
Shariat~ It is not a legislation regulating Talaq - The 1937 Act
simply makes Shariat applicable as the rule of decision in the matters D
enumerated in s.2 - Therefore, while Talaq is governed by Shariat,
the specific grounds and procedure for Talaq have not been codified
in the 1937 Act.
(Per Kurian, J.)
~
Words and Phrases: Expression 'Shariat' - Meaning of (Per
::l
Nariman, J.)
E
I t
Words and Phrases: Shariat - Meaning of (Per Kurian, J,)
MINORITY OPINION
Muslim Law: Talaq-e-biddat - Does the judgment of the Privy
Council in the Rashid Ahmad case, upholding Ta/aq-e-biddat, require
a relook - It was submitted, that after having acquired statuto1y
status, the questions and subjects (including 'talaq-e-biddat'), would
have to be in conformity (-and not in conflict), with the provisions
F
of Part Ill - Fundamental Rights, of the Constitution - All these are
important legal questions, requiring examination - The matter would
certainly require a fresh look, because various High Courts, having G
examined the practice of divorce amongst Muslims, by way of' 'talaqe-biddat', have arrived at the conclusion, that the judgment in the
Rashid Ahmad case was rendered on an incorrect understanding, of
the Mu.i:Jim 'personal law' - 'Shariat'. (Per Khehar, CJ/)
H
800
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
Muslim law: Talaq-e-biddat - All the parties were unanimous,
that despite the practice of 'talaq-e-biddat' being considered sinful, it was accepted amongst Sunni Muslims belonging to the Hana.fl
school, as V(l/id in law, and has been in practice t1mongst them -
Talaq-e-biddat' is integral to the religious denomination of Sunnis
B belonging to the Hanafi school - The same is a part of their faith.
having been followed for more than 1400 years, and as such, has
to be accepted as being constituent of their 'personal law'. (Per
Klrehar, CJ/)
Muslim law: Talaq-e-biddat - Constitutionality under the
C Muslim 'personal law' • Shariat - T11e practice of 'talaq-e-biddat'
being a constituent of 'personal law' has a stature equal to other
fundamental rights, conferred in Part 111 of the Constitution - The
practice cannot, therefore, be set aside, on the ground of being
violative of the concept of the constitutional morality, through judiD
cial intervention. (Per Khelrar, CJI)
Muslim law: Talaq-e-biddat - Need for legislation -
It is not
within the realm of judicial discretion, to set aside a ma/fer of.fi1ith
and religion -
The position can only be salvaged b)' way of
legislation - This is a case which presents a situation where the
Court should exercise its discretion to issue appropriate directions
E under Article 142 of the Constitution - The U11ion of India is directed
to consider appropriate legislation, particularly with reference to
'talaq-e-biddat' -
Till such time as legislation in the matter is
considered, Muslim husbands, are injuncted fi·om pronouncing
'talaq-e-biddat' as a means for severing their matrimonial
F
G
relationship. (Per Khehar, CJJ)
Muslim Personal Law (.%ariat) Application Act, 1937: it is
incorrect statement that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be /Jersonal law', and got transformed into 'statutory law'. (Per Khe/lar,
CJI)
Constitution of India: Art.25 and Arts. 14, 15 and 21 - 'Talaqe-biddat ', does not violate the parameters expressed in Art.25 -
The practice is not contrary to public order, morality and health -
The practice also does not violate Arts.14, 15 and 21 of the Constitution, which are limited to State actions alone - Muslim law. (Per
H Khehar, CJ/)
SHAYARA BANO v. UNION OF INDIA AND OTHERS
801
Constitution of India: Arts.25 and 44 riw Seventh Schedule,
A
List III, Entry 5 - Reforms to 'personal law' in India, with reference
to sociatly unacceptablepractices in different religions, have come
about only by way of legislative intervention - Such legislative intervention is permissible under Arts25(2) and 44, read with Entry
5 of the Concurrent List, contained in the Seventh Schedule of the B
Constitution - The said procedure alone need to be followed with
reference to the practice of 'talaq-e-biddat ', if the same is to be set
.
I
aside. (Per Khehar, C.11)
·
International Conventions and Declarations: Binding effect
for deciding validity of talaq-e-biddat - Held: Not binding since
the practice of 'ta/aq-e-biddat ', is a component of 'personal law',
C
and has the protection of Art.25 of the Constitution. (Per Khehar,
C.Tl)
Disposing of the matters, Held:·
PER COURT: By a majority of 3 : 2, the practice of 'talaq-eD
biddat' - triple talaq is set aside. [Para 1) [i158-B]
PER NARIMAN, J. (FOR HIMSELF AND FOR LALIT, J.):
1.1
The Muslims in India are divided into two main sects,
namely Sunnis .and Shias, and this case pertains only to Sunnis as
E
Shias do not recognise Triple Talaq. Fourt major sub-sects are
broadly recognised schools of Sunni law. They are the Hanafi
school, Maliki school, Shafi' i school and Hanbali school. The
overwhelming majority of Sunnis in India follow the Hanafi school
of law. The Hanafi school has supported the practice of Triple
Talaq amongst the Sunni Muslims in India for many centuries.
F
[Paras 4, 6, 7) [1084-B-C; 1085-F-G; 1086-D-E]
*Shamim Ara v. State of U.P. [20021 3 Suppl. SCR 19 :
(2002) 7 SCC 518; Commissioner of Police v. Acharya
Jagdishwarananda Avadhuta [2004] 2 SCR 1019 :
(2004) 12 sec 770 - relied on.
G
Prakash v. Phu!avati (2016) 2 SCC 36; State of
Bombay v. Narasu Appa Mali, AIR 1952 Born 84 -
referred to
H
802
A
SUPREME COURT REPORTS
[2017] 9 S.C.R.
Principles of Mahomedan Law (16th Ed.) and (20th Ed.)
by Mulla; "Outlines of Muhammadan Law" (5th Ed.) by
A.A.A. Fyzee - referred to.
1.2 It can be seen that the 1937 Act is a pre-constitutional
legislative measure which would fall directly within Article 13(1)
B of the Constitution of India. True, the Objects and Reasons of a
statute throw light on the background in which the statute was
enacted, but it is difficult to read the non-obstante clause of Section
2 as governing the enacting part of the Section. It is, therefore,
clear that all forms of Talaq recognized and enforced by Muslim
C personal law are recognized and enforced by the 1937 Act. This
would necessarily include Triple Talaq when it comes to the
Muslim personal law applicable to Sunnis in India. Therefore, it
is very difficult to accept the argument that Section 2 does not
recognize or enforce Triple Talaq. It clearly and obviously does
both, because the Section makes Triple Talaq "the rule of decision
D in cases where the parties are Muslims". Thus, the 1937 Act is
a law made by the legislature before the Constitution came into
force, it would fall squarely withi"n the expression "laws in force"
in Article 13(3)(b) and would be hit by Article 13(1) if found to be
inconsistent with the provisions of Part Ill of the Constitution,
to the extent of such inconsistency. [Paras 14, 16, 18, 19) (1095E B, G-H; 1097-C-EJ
Sarabai v. Rabiabai (1906) ILR 30; Commissione1;
Hindu Religious Endowments, Madras
v.
Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954)
SCR 1005; Prem Chand Garg v. Excise Commissioner,
F
U.P. [1963) Supp. 1 SCR 885; Obergefell v. Hodges,
135 S. Ct. 2584 at 2605, decided on June 26, 2015 by
U.S. Supreme Court - referred to
2.1 In **Commissioner of Police~v. Acharya, it was held
"Test to determine whether a part of practice is essential to a
G religion is to find out whether the nature of the religion will be
changed without that part or practice. If the taking away of that
part or practice could result in a fundamental change in the
character of that religion or in its belief, then such part could be
treated as an essential or integral part." Applying this test, it is
H clear that Triple Talaq is only a form ofTalaq which is permissible
. (·
I
SHAYARA -BANO v. UNION-OF INDIA AND OTHERS
803
in law, but at the same time, stated to be sinful by the very Hanafi A
school which tolerates it and that the fundamental nature of the
Islamic religion, as seen through an Indian Sunni Muslim's eyes,
will not change without this practice. As stated by Hidayatullah, J.
in his introduction to Mulla, Islam divides all actions into five
kinds which figure differently in the sight of God and in respect B
of whiclt His Commands are different. This plays an important
part in the lives of Muslims. (i) First degree: Fard. Whatever is
commanded in the Koran, Hadis or ijmaa must be obeyed. Waiib.
Perhaps a little less compulsory than Fard but only slightly less
so. (ii) Second degree: Masnun, Mandub and Mustahab: These
are recommended actions. (iii) Third degree: Jaiz or Mubah:
C
These are permissible actions as to which religion is indifferent.
(iv) Fourth degree: Makruh: That which is reprobated asunworthy. (v) Fifth degree: Haram: That which is forbidden."
[Paras 24, 25] [1100-E, 1101-B~C, E~H; 1002-A-C]
*Commissioner of Police v. Acharya Jagdishwarananda
D
Avadhuta (2004] 2 SCR 1019 : (2004) 12 SCC 770 -
relied on.
Sant Ram & Ors. v. Labh Singh & Ors., [1964] 7 SCR
756 - referred to -- ·
2.2 Obviously, Triple Talaq does not fall within the first
degree, since even assuming that it forms part of the Koran, Hadis
or Ijmaa, it is not something "commanded". Equally Talaq itself
is not a recommended action and, therefore, Triple Talaq will not
E
fall within the second degree. Triple Talaq at best falls within the
third degree, but probably falls more squarely within the fourth
degree. It will be remembered that under the third degree, Triple
F
Talaq is a permissible. action as to which religion -is indifferent.
Within the fourth degree, it is reprobated as unworthy. It is seen
that though permissible in Hanafi jurisprudence, yet, that very
jurisprudence castigates Triple Talaq as being sinful. It is,
therefore, clear that Triple Talaq forms no part of Article 25(1).
G
This being the case, the submission on behalf of the Muslim
Personal Board that the ball must be bounced back to the
legislature does not at all arise in that Article 25(2)(b) would only
apply if a particular religious practice is first covered under Article
25(1) of the Constitution, [Para 25] [1102-D-F]
H
804
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
Javed v. State of Haryana [20031 1 Suppl. SCR 947 :
(2003) 8 sec 369 - relied on
Ahmedabad Women Action Group v. Union of India ·
[19971 2 SCR 389 : (1997) 3 SCC 573 - Not good law
3.1 It is at this point that it is necessary to sec whether a
B fundamental right has been violated by the 1937 Act insofar as it
seeks to enforce Triple Talaq as a rule of hiw in the Courts in
India. Article 14 of the Constitution of India is a facet of equality
of status and opportunity spoken of in the Preamble to the
Constitution. The Article naturally divides itself into two partsC (1) equality before the law, and (2) the equal protection of the
D
E
law. [Para 31, 32) (1105-A-BJ
Mithu v. State of Punjab, (1983) 2 SCC 277; Mohd.
Arif v. Supreme Court of India [20141 11 SCR 1009 :
(2014) 9 SCC 737; Sunil Batra v. Delhi Administration
& Ors. (1978) 4 SCC 494; A. K. Gopalan v. State of
Madras (1950) SCR 88; Rustom Cavasjee Cooper v.
Union of India [1970] 3 SCR 530 : (1970) 1 SCC 248;
State of Punjab v. Khan Chand [19741 2 SCR 768 :
(1974) 1 SCC 549; Om Kumar v. Union of India [20001
4 Suppl. SCR 693 : (2001) 2 SCC 386 - referred to.
Tej Bahadur Sapru Memorial Lecture entitled "Democracy
and Judicial Review" - referred to.
3.2. The arbitrariness doctrine contained in Article 14 would
apply to negate legislation, subordinate legislation and executive
F
action. Arbitrariness in legislation is very much a facet of
unreasonableness in Article 19(2) to (6). There is no reason
why arbitrariness cannot. be used in the said sense to strike down
legislation under Article 14 as well. The thread of reasonableness
runs through the entire fundamental rights Chapter. What is
manifestly arbitrary is obviously unreasonable and being contrary
G to the rule of law, would violate Article 14. Further, there is an
apparent contradiction in the three Judges' Bench decision in
**McDowell when it is said that a constitutional challenge can
succeed on the ground that a law is "disproportionate, excessive
or unreasonable", yet such challenge would fail on the very
H ground of the law being "unreasonable, unnecessary or
SHAYARA BANO v. UNION OF INDIA AND OTHERS
805
unwarranted". The arbitrariness doctrine when applied to
A
legislation obviously would not involve the latter challenge but
would only involve a law being disproportionate, ex~essive or
otherwise being manifestly unreasonable. All these grounds,
therefore, do not seek to differentiate between State action in its
various forms, all of which are inter(jicted if they fall foul of the B
fundamental rights guaranteed to persons and citizens in Part III
of the Constitution. Subordinate legislation can be struck down
on the ground that it is arbitrary and, therefore, violative of Article
14 of the Constitution. [Para 41, 44, 45, 54] [1112-E, 1126-C-D;
1129-C-E, 1136-B-C]
**State of A.P. v. McDowell & Co. [1996) 3 SCR 721:
(1996) 3 sec 709 - per incuriam.
State of UP. v. Deoman Upadhyaya [1961] 1 SCR 14;
Lachhman Das v. State of Punjab [1963) 2 SCR 353;
S.G Jaisinghani v. Union of India [1967) 2 SCR 703;
State of Mysore v. S.R. Jayaram [1968) 1 SCR 349;
Indira Gandhi v. Raj Narain judgment [1976] SCR 347
: 1975 Supp SCC 1; Kesavananda Bharati v. State of
Kera/a (1973) Suppl. SCR l : (1973) 4 SCC 225;
E.P. Royappa v. State of T.N. [1974] 2 SCR 348 : (1974)
4 SCC 3; Maneka Gandhi v. Union of India [1978] 2
SCR 621 : (1978) 1 SCC 248; A.L. Katra v. Project
and Equipment Corpn. [1984] 3 SCR 646 : (1984) 3
SCC 316; Babita Prasad v. State of Bihar [1992) 3
Suppl. SCR 438 : (1993) Suppl. 3 SCC 268; Ajay Hasia
v. Khalid M11jib Sehravardi (1981) 1 SCC 722; K.R.
Lak5hmanan (Dr.) v. State of T.N. [1996) .1 SCR 395 :
(1996) 2 SCC 226 - relied OD;
Malpe Vishwanath Achmya v. State of Maharashtra·.
[1997) 6 Suppl. SCR 717 : (1998) 2 SCC 1; Mardia
Chemicals Ltd. & Ors. v. Union of India & Ors. etc. etc.
c
D
E
F
[2004] 3 SCR 982 : (2004) 4 SCC 311; State of Tamil
G
Nadu v. K. Shyam Sunder [2011) 11 SCR 1094 : (2011)
8 SCC 737; A.P. Dairy Development Co1pn. Federation
v. B. Narasimha Reddy [2011) 14 SCR 1 : (2011) 9
SCC 286; Ashoka Kumar Thakur v. Union of India
[2008) 4 SCR 1 i (2008) 6 SCC 1; K.T. Plantation (P) ·
H
806
A
B
SUPREME COURT REPORTS
[2017] 9 S.C.R.
Ltd. v. State of Karnataka (2011( 13 SCR 636 : (2011)
9 SCC 1; Natural Resources Allocation, In re, Special
Reference No.I of 2012, (2012( 9 SCR 311 : (2012)
10 SCC 1; Dr. Subramanian Swamy v. Direct01; Central
Bureau of investigation J2014J 6 SCR 873 : (2014) 8
SCC 682; D1: Subramanian Swamy v. Direct01; Central
Bureau of Investigation (2005) 2 SCC 317 - referred
to.
3.3 Manifest arbitrariness, must be something done by the
legislature capriciously, irrationally and/or without adequate
determining principle. Also, when something is done which is
C excessive and disproportionate, such legislation would be
manifestly arbitrary. Therefore, arbitrariness in the sense of
manifest arbitrariness would apply to negate legislation as well
under Article 14. Appl)•ing the test of manifest arbitrariness to
the case at hand, it is clear that Triple Talaq is a form of Talaq
D which is itself considered to be something innovative, namely,
that it is not in the Sunna, being an irregular or heretical form of
Talaq. [Para 55-561 f 1138-B-DI
E
F
· Indian Express Newspapers v. Union of India f 1985( 2
SCR 287 : (1985) 1 SCC 641 - relied on.
Cellular Operators Association of India v. Telecom
Regulatory Authority of India f2016] 9 SCR 1 : (2016)
7 SCC 703; State ofBihar v. Bihar Distillery Ltd. (1996(
9 Suppl. SCR 479 : (1997) 2 SCC 453; State of M.P. v.
Rakesh Kohli (2012] 6 SCR 661 : (2012) 6 SCC 312;
Rajbala v. State of Haryana & Ors., (2015] 12 SCR
1106 : (2016) 2 SCC 445; Binoy Viswam v. Union of
India, (2017) 7 SCC 59 - referred to.
3 .4 Indeed, in Sltamim Ara case, this Court after referring
to a number of authorities including certain recent High Court
G judgments held "The correct law of talaq as ordained by the Holy
Quran is that talaq must be for a reasonable cause and be preceded
by attempts at reconciliation between the husband and the wife
by two arbiters -
one from the wife's family and the other from
the husband's; if the attempts fail, talaq may be effected". Given
the fact that Triple Talaq is instant and irrevocable, it is obvious
H
SHAYARA BANO v. UNION OF INDIA AND OTHERS
· 807
that any attempt at reconciliation between the husband and wife
A
by two arbiters from their families, which is essential to save the
marital tie; cannot e~er take place. Also, as. understood· by the
Privy Council in Rashid Ahmad, such Triple Talliq is valid even if
it is not for any reasonable cause, which view of the law rio longer
ho~ds good after Shamim Ara. This being the case, it is clear th.at
B
this form of Talaq is manifestly arbitrary in the serise that the
marital tie can be broken capriciously and whimsically by a: Muslim
man without any attempt at reconciliation so as to save it. This
form of Talaq must, therefore, be held to be .violative of .the
. fundamental right contained under Article. 14 of the Constitution
of India. Therefore, the 1937. Act, insofar as it s·eeks:to recognize
C ·
and enforce Triple Talaq, is within the meaning of the expression , ·
"laws in force" in Article 13(1) :ind must be struck down as being.
void to the extent that it recognizes and enforces Triple :Talaq.
[Paras 56, 57) (1138-D-E; 1139-B-D)
' .
Rashid Ahmad v. Anisa Khatun (1931~ 32) S9 IA 21: · ··
'.
AIR 1932 PC 25 - Not good law. .
.
PER KURIAN, J.:
I. After the 1937 Act, in respect of the enumerated subjects
under Section 2 regarding "marriage, dissolution of marriage,
including talaq", the law that is applicable to Muslims shall be
only their personal law namely Shariat. Nothing more, nothing
less. It is not a legislation regulating talaq. In contradistinction,
The Dissolution of Muslim Marriages Act, 1939 provides for the
grounds for dissolution of marriage. So is the case with the Hindu
Marriage Act, 1955. The 1937 Act simply makes Shariat applicable
as the rule of decision in the matters enumerated in section 2,
Therefore, while talaq is governed by Shariat, the specific grounds
and procedure for talaq have not been codified in the 1937 Act.
[Paras 4) (1140-D-E; 1141-A-B)
D
E
F
2.1
There are four sources for Islamic law- (i) Quran (ii)
G
Hadith (iii) Ijma (iv) Qiyas. The #author in his book Outlines of·
Muhammadan Law has rightly said that the Holy Quran is the
"first source of law". According to the author, pre-eminence is to
be given to the Quran. That means, sources other than the Holy •
Quran are only to supplement what is given .in it and to supply
H
•
...
808
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[2017) 9 S.C.R.
A what is not provided for. In other words, there cannot be any
Hadith, Ijma or Qiyas against what is expressly stated in the
Quran. Islam cannot be anti-Quran. [Para 71 [1142-B-CI
B
Asaf A.A. Fyzee in his book Outlines of Muhammadan
Law, 5th Edition, 2008 - referred to
2.2 There is reference to talaq in three Suras - in Sura II
while dealing with social life of the community, in Sura IV while
dealing with decencies of family life and in Sura LXV while dealing
explicitly with talaq. The instructive verses in Sura LXV of the
Quran, dealing with talaq are clear and unambiguous as far as
c talaq is concerned. The Holy Quran has attributed sanctity and
permanence to matrimony. However, in extremely unavoidable
situations, talaq is permissible. But an attempt for reconciliation
and if it succeeds, then revocation are the Quranic essential steps
before talaq attains finality. In triple talaq, this door is closed,
hence triple talaq is against the basic tenets of the Holy Quran
D and consequently, it violates Shariat. (Paras 8, 10111142-F-; 1150A-B]
E
F
G
H
Fuzlunbi v. K Khader Vali and Another (19801 3 SCR
1127 : (1980) 4 sec 125 - approved
Masroor Ahmed v. State (NCT of Delhi) & Another ILR
(2007) II Delhi 1329; Sarabai v. Rabiabai lLR 30
Born 537; Furzund Hossein v. Janu Bibee ILR (1878)
4 Cal 588; Jiauddin Ahmed v. Anwara Begum (1981) 1
Gau LR 358; Rukia Khatun v. Abdul Khalique Laskar
(1981) 1 Gau LR 375; A. Yousuf Rawther v. Sowramma
AIR 1971 Ker 261; Mohd Haneefa 1~ Pathummal Beevi
1972 KLT 512; Andhra Pradesh, in Zamntd Begum v.
K. Md. Haneef and another (2003) 3 ALU 220; A. S.
Parveen Akthar v. The Union of India 2003-1-L.W. 370
- referred to
3. The view of the Chief Justice that the practice of triple
talaq has to be considered integral to the religious denomination
in question and that the same is part of their personal law is not
endorsed. [Para 23) (1156-G-HJ
4. To freely profess, practice and propagate religion of one's
SHAYARA BANO v. UNION OF INDIA AND OTHERS
809
choice is a Fundamental Right guaranteed under the Indian A
Constitution. That is subject only to the following-(1) public order,
(2) health, (3) morality and (4) other provisions of Part III dealing
with Fundamental Rights. Under Article 25(2) of the Constitution
of India, the State is also granted power to make law in two
contingencies notwithstanding the freedom granted under Article B
25(1). Article 25 (2) states that "nothing in this Article shall affect
the operation of any existing law or prevent the State from making
any law- (a) regulating or restricting any economic, financial,
political or other secular activity which may be associated with
religious practice; (b) providing for social welfare and reform or
the throwing open of Hindu religious institutions of a public C
character to all .classes and sections of Hindus." Except to the
above extent, the freedom of religion under the Constitution of
India is absolute. However, triple talaq is not an integral part of
the religious practice. Merely because a practice has continued
for long, that by itself cannot make it valid if it has been expressly D
declared to be impermissible. The whole purpose of the 1937
Act was to declare Shariat as the rule of decision and to discontinue
anti-Shariat practices with respect to subjects enumerated in
Section 2 which include talaq. Therefore, in any case, after the
introduction of the 1937 Act, no practice against the tenets of
Quran is permissible. Hence, there cannot be any Constitutional
E
protection to such a practice.[Para 24] [1157-A-C, D-E]
5. When issues of such nature come to the forefront, the
discourse often takes the form of pitting religion against other
constitutional rights. A reconciliation between the same is
possible, but the process of harmonizing different interests is
p
within the powers of the legislature. Of course, this power has to
be exercised within the constitutional parameters without curbing
the religious freedom guaranteed under the Constitution of India.
However, it is not for the Courts to direct for any legislation.
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.
G
[Paras 25, 26] [1157-F-G; 1158-A]
,
Shamim Ara v. State of UP and Another [2002) 3 Suppl.
SCR19 : (2002) 7 SCC 518 - affirmed.
Shri Krishna Singh v. Mathura Ahir and Others [1980]
H
810
A
. B
SUPREME COURT REPORTS
[2017] 9 S.C.R.
2 SCR 660 = (1981) 3 SCC 689; Ahmedabad Women
Action Group (AWAG) and Ors. v. Union of India [19971
2 SCR 389 = (1997) 3 SCC 573; Manzoor Ahmad Khan
v. Saja & Ors. 2010 (4) JKJ 380; Ummer Farooque v.
Naseema 2005 (4) KLT 565; Nazeer @ Oyoor Nazeer
v. Shemeema 2017 (1) KLT 300 - referred to .
PER KHEHAR, CJI (FOR HIMSELF AND FOR NAZEER, J.):
1. Does the judgment of the Privy Council in the **Rashid Ahmad
case, upholding 'talag-e-biddat', require a relook'!
The **Rashid Ahmad case was rendered by applying the
C Muslim 'personal law'. In the said judgment, 'talaq-e-biddat'
was held as valid and binding. This judgment was rendered in
1932. The opinion expressed by the Privy Council with reference to 'talaq-e-biddat', in the Rashid Ahmad case, holding that
'talaq-e-biddat' results in finally and irrevocably severing the matD rimonial tie between spouses, the very moment it is pronounced,
needs to be examined afresh. More particularly, because the
validity of the same as an approved concept, of Muslim 'personal
law' - 'Shariat', was not evaluated at that juncture (-as it indeed
could not have been, as the legislation was not available, when
the Privy Council had rendered its judgment), in the backdrop of
E
the Shariat Act, and also, the provisions of the Constitution of
India. [Paras 115, 120) (999-G-H; 1000-C-D; 1103-G-H; 1104-AI
F
.. G
H
**Rashid Ahmad v. Anisa Khatun AIR 1932 PC 25 -
needs fresh examination.
Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau.L.R.
358; Must. Rukia Khatun v. Abdul Khalique Laskar
(1981) 1 Gau. L.R. 375; Masroor Ahmed v. State (NCT
of Delhi) 2008 (103) DRJ 137; Nazeer v. Shemeemu
2017 (1) KLT 300; Kesavananda Bharati v. State of
Kerala [1973) Suppl. SCR 1 : (1973) 4 SCC 225;
Minerva Mills Ltd. v. Union of India (198111SCR206:
(1980) 3 SCC 625; Manoj Narula v. Union o.f' lndia
(20141 9 SCR 965 : (2014) 9 SCC 1; Javed i' State of
Haryana [20031 1 Suppl. SCR 947 : (2003) 8 SCC
369; Khursheed Ahmad Khan v. State of Uttar Pradesh
[2015) 1 SCR 1032 : (2015) 8 SCC 439; State of Bihar
SHAYARA BANO v. UNION OF INDIA AND OTHERS
811
v. Rai Bahadur Jjurdut Roy Moti Lal .Jute Mills 1?60 •
AIR 378 : [1960] SCR 331; A. YusufRa~ 1ther v.
Sowramma AIR 1971 Ker 261; Fuzlunbi v. K. Khader .
Vali (1980) 3 SCR 1127 : (1980) 4 SCC 125 - referred ·
to.
A
Principles ofIVlohomedan Law by Sir Dinshaw .Fardlinji
B
MuHa, Lexis Nexis, Butterworths Wadhwa, Nagpur,
20th edition) - referred to.
Has 'talaq-e-biddat', which is concededly sinful, sanction of law'!
2.1 The submission that 'talaq-e-biddat', does. not have its c
source o'f origin from the Quran does not need a serious
examination, because even 'talaq-e-ahsan' and 'talaq-e-hasan'
which the petitioners acknowledge as - 'the most proper', and - .
'the proper' forms of divorce respectively; also do not find mention
in the Quran. Despite the absence of any reference to 'talaq-e-
. ahsan' and 'talaq-e-hasan' in the Quran, none of the petitioners D
has raised any challenge thereto, on this score. A challenge. t.o
'talaq-e-biddat' obviously cannot be raised on this ground. Tlie
different approved practices of talaq among Muslims, have their
origin in 'hadiths' and other sources of Muslim. jurisprudence
and therefore, merely because it is not expressly provided for or
approved by the Quran, cannot be a valid j ustitication for. setting
aside the practice.[Para 1211 [1004-B-DJ
2.2 The prayer of petitioners was that whatever is irregular
E
and sinful, cannot have the sanction of law on the ground that
'talaq-e-biddat' is proclaimed as bad in theology. The petitioners
prayed that the present controversy needed· a similar F
intervention, as had ·been adopted for doirig away with similar ·
patriarchal, irregular and sinful practices amongst Hindus. The
submission was, that just as 'Sati' · Devadasi and Polygamy had
been dedared as unacceptable, the practice of 'talaq-e-biddat'
should likewise be declared as unacceptable in taw. Insofar as
G
the practice of 'Sati' is concerned, its practice n·ached alarming
~ . proportion between 1815-1818, it is estimated that the incidence
·of 'Sati' doubled during this period. The provincial Government
of Bengal banned 'Sati' in 1829, by way of legislation. This.was
then followed by similar laws by princely States in India. After
H
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A the practice was barred by law, the Indian Sati Prevention Act,
'1988 was enacted, which criminalised any type of aiding, abetting
'or glorifying the practice of 'Sa ti'. Insofar as the practice of
'•Devadasi' is concerned, soon after the end of British rule,
'independent India passed the Madras Devadasi's (Prevention of
B Dedication) Act (-also called the Tamil N ad u Devadasis
(Prevention of Dedication Act) on 09.10.1947. The enactment
made prostitution illegal. The other legislations enacted on the
same issue, included the 1934 Bombay Devadasi Protection Act,
the 1957 Bombay Protection (Extension) Act, and the Andhra
Pradesh Devadasi (Prohibition of Dedication) Act of 1988. It is
C therefore apparent, that the instant practice was done away with,
through legislation. Polygamy was permitted amongst Hindus.
In 1860, the Indian Penal Code made 'polygamy' a criminal
offem;e. The Hindu Mariage Act was passed in 1955. Section 5
thereof provides, the conditions for a valid Hindu marriage. One
0
of the conditions postulated therein was, that neither of the parties
to the matrimonial alliance should have a living spouse, at the
time of the marriage. The practices of 'Sati', 'Devadasi' and
'polygamy' were abhorrent, and could well be described as sinful.
They were clearly undesirable and surely bad in theology.
However neither of those practices came to be challenged before
E any court of law. Each of t~e practices were discontinued and
invalidated by way of legislative enactments. The instances cited
on beJtalf of the petitioners cannot therefore be of much avail,
wit.h reference to the matter in hand, wherein, the prayer is for
judicial intervention. [Para 122-1251 [1004-E-F; 1005-E-H; 1006F A, B-EJ
2.3 There is no dispute on two issues. Firstly, that the
practice of 'talaq-e-biddat' has been in vogue since the period of
Umar, which is roughly more than 1400 years ago. Secondly, the
counsels, irrespective of who they represented, (-the petitioners
or the respondents), acknowledged in one voice, that 'talaq-eG 'biddat' though bad in theology, was considered as "good" in law.
H
All counsel representing the petitioners were also unequivocal,
that 'talaq-e-biddat' was accepted as a "valid" practice in law.
That being so, it is not possible to hold, the practice to be invalid
in law, merely at the asking of the petitioners, just because it is
SHAYARA BANO v. UNION OF INDIA AND OTHERS
813
considered bad in theology. !Para 1271 [1007-F-H]
A
3. ls the practice of 'talag-e-biddat', approved?disapproved by
"hadiths"?
This Court in the ***Shamim Ara case did not debate the
issue of validity of 'talaq-e-biddat'. Observations recorded on
the subject cannot, therefore, be treated as ratio decidendi in the B
matter. In fact, the question of validity of 'talaq-e-biddat' has
never been debated before this Court. This is the first occasion
that the matter is being considered after rival submissions have
been advanced. l\foreover, in the said judgment the Court was
adjudicating a dispute regarding maintenance under Section 125
C
of the Code of Criminal Procedure. The husband, .in order to
avoid the liability of maintenance pleaded that he had divorced
his wife. the liability to pay maintenance was accepted, not
because 'talaq-e-biddat' - triple talaq was not valid in Inv, but
because the husband had not been able to establish the factum of
divorce. It is therefore not possible to accept the submission on D
the strength of the Shamim Ara case. [Para 138] (1016-D-E; 1018-.
Bl
***Shamim Ara v. State of U.P. [20021 3 Suppl. SCR
19 : (2002) 7 sec 518 - distinguished
4. Is the practice of 'talag-e-biddat', a matter of faith for Muslims?
If yes, whether it is a constituent of their 'personal law'?
The practice of 'talaq-e-biddat' was widespread. About 90%
E
of the Sunnis in India, belong to the Hanafi school, and they have
been adopting 'talaq-e-biddat' as a valid form of divorce. An
F
overwhelming majority of Muslims in India, have had recourse
to the severance of their matrimonial ties, by way of 'talaq-ebiddat' - as a matter of their religious belief - as a matter of their
faith. The practice of 'talaq-e-biddat' has to be considered integral
to the religious denomination in question - Sunnis belonging to
the Hanafi school. The practice of 'talaq-e-biddat', has had the
G
sanction and approval of the religious denomination which
practiced it, and as such, there can be no doubt that the practice,
is a part of their 'personal law'. [Para 142, 144, 1451 11019-C-D,
G; 1020-B-D, E-F]
~
H
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[2017] 9 S.C.R.
A 5. Did the Muslim Personal Law (Shariat) Application Act, 1937
confer statutory status to the subjeds regulated by the said
le2islation'!
5.1 'Personal law' has a constitutional protection through
Ai:ticle 25 of the Constitution. The stature of 'personal law' is
B that of a fundamental right. The elevation of 'personal law' to
this stature came about when the Constitution came into force.
This was because Article 25 was included in Part III of the
Constitution. Stated differently, 'personal law' of every religious
denomination, is protected from invasion and breach, except as
c provided by and under Article 25. (Para 1461 (1020-Gf
· 5.2 A perusal of Section 2 of 1937 Act thereof reveals, that
on the questions/subjects of intestate succession, special property
of females, including personal property inherited or obtained
under contract or gift or any other provision of 'personal law',
marriage, dissolution of marriage, including talaq, ila, zihar, lian,
D khula and mubaraat, maintenance, dower, guardianship, gifts,
trusts and trust properties, and wakfs, " ... the rule of decision
... ",where the parties are Muslims, shall be" ... the Muslim
Personal Law - Shariat. [Para 1491 11021-F-GI
E
F
5.3 The limited purpose of Section 2 was to negate the
overriding effect of usages and customs over the Muslim
'personal law' - 'Shariat'. This determination clearly emerges
even from the debates in the Legislative Assembly before the
enactment of Muslim Personal Law (Shariat) Application Act,
1937. The debates reveal that customs and usages by tribals
were being given overriding effect by courts while determining
issues between Muslims. Even usages and customs of particular
villages were given overriding effect over Muslim 'personal law'
- 'Shariat'. A perusal of Section 2 and the non obstante clause
used therein, has that effect. The Shariat Act neither lays down
nor declares the Muslim 'personal law' - 'Shariat'. Not even, on
G the questions/subjects covered by the legislation. There is
substantial divergence of norms regulating Shias and Sunnis.
There was further divergence of norms, in their respective
schools. The Shariat Act did not crystalise the norms as were to
be applicable to Shias and Sunnis, or their respective schools.
H What was sought to be done through the Shariat Act was to
' '
i
SHAYARA BANO v. UNION OF INDIA AND OTHERS
815
preserve Muslim 'personal law' -' 'Shariat', as it existed from ·A
time immemorial.