Shayara Bano v Union of India (Supreme Court, 2017) — talaq-e-biddat set aside

It is the constitutional landmark of this paper. The order is one sentence; the reasoning is three separate judgments; the examiner wants both the order and the two lines of reasoning that made the majority.

Shayara Bano, divorced by a triple talaq, petitioned under Article 32 (Writ Petition (C) No. 118 of 2016), joined by other petitioners and by the Court's own suo motu writ on Muslim women's quest for equality. The question was whether the practice of talaq-e-biddat — three pronouncements at one time, instantly dissolving the marriage — was constitutionally valid, and whether it was part of Muslim personal law protected by Article 25.

On 22 August 2017 the five-Judge Bench — Khehar CJI, Kurian Joseph, Nariman, Lalit and Nazeer JJ — delivered its order: "In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat' — triple talaq is set aside."

The majority rested on two grounds. Nariman J. (for himself and Lalit J.) held that talaq-e-biddat, being recognised and enforced through s. 2 of the Shariat Application Act, 1937, was "law" open to challenge under Part III; that a law which allows a marriage to be broken capriciously, without cause and without any attempt at reconciliation, is "manifestly arbitrary"; and that s. 2 of the 1937 Act was therefore void "to the extent indicated" — so far as it recognised talaq-e-biddat — under Article 14, without needing to reach the discrimination argument. Kurian Joseph J. reached the same result on the footing of Muslim law itself: what the Quran does not sanction cannot be part of the Shariat protected by Article 25, and "Shamim Ara is the law that is applicable in India". Khehar CJI and Nazeer J. dissented, treating the practice as part of personal law protected by Article 25 and leaving reform to Parliament.

1. Talaq-e-biddat is set aside (3:2).
2. Per Nariman and Lalit JJ: personal law given statutory recognition by the 1937 Act is testable under the Constitution, and instant talaq fails Article 14 as manifestly arbitrary.
3. Per Kurian Joseph J: instant talaq is not part of the Shariat; the law of talaq in India is Shamim Ara — reasonable cause and attempted reconciliation.

Parliament followed with the Muslim Women (Protection of Rights on Marriage) Act, 2019 (Act 20 of 2019, deemed in force from 19 September 2018): s. 3 declares any pronouncement of talaq-e-biddat "void and illegal", s. 4 punishes the husband with up to three years' imprisonment and fine, ss. 5–6 give the wife a subsistence allowance and custody of her minor children, and s. 7 makes the offence cognizable and compoundable at her instance, with bail only after hearing her.