India: Shah Bano to Shayara Bano - Supreme Court issues notice in Triple Talaq, Polygamy challenge

Bar & Bench

Murali Krishnan February 29, 2016

Shah Bano to Shayara Bano: Supreme Court issues notice in Triple Talaq, Polygamy challenge [Read petition]


After inviting a lot of attention, both negative and positive, for its remarks in the Sabarimala temple entry case, the Supreme Court has today fired a fresh salvo.

The Division Bench of Justices Anil R Dave and AK Goel issued notice in a petition filed by one Shayara Bano from Uttarakhand. Bano’s petition challenges the Constitutionality of Muslim practices of polygamy, triple talaq(talaq-e-bidat) and nikah halala.

Senior Advocate Amit Chadha appeared for the petitioner.

Her petition states that she was subject to cruelty, and dowry demands, from her husband and his family. Bano also claims that she was given drugs that “that caused her memory to fade, kept her unconscious. Eventually, these drugs made her “critically ill” at which point her husband divorced her by triple talaq.

Besides challenging the divorce deed, the petitioner has challenged the Constitutionality of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate polygamy, triple talaq (talaq-e-bidat) and nikah halala.

She has also challenged the Dissolution of Muslim Marriages Act, 1939 in so far as it fails to provide Indian Muslim women with protection from bigamy.

Bano argues that such practices have reduced women to mere chattels, and such practices don’t have a place in a progressive society. She has also contended that such practices are propagated, supported and authorised by imams, maulavis etc. who grossly misuse their position, influence and power.

On polygamy

The petitioner has likened polygamy to Sati contending that it is a problem which poses serious health, economic, moral and emotional risks.

“Polygamy is another practice that has been recognised as an evil plague similar to sati and has also been banned by law in India for all but Muslim citizens….

A perusal of the decisions of this Hon’ble Court in Prakash v. Phulavati (supra), Javed and Others v. State of Haryana and Others, (2003) 8 SCC 369, and Smt. Sarla Mudgal, President, Kalyani and Others v. Union of India and Others, (1995) 3 SCC 635 illustrates that the practice of polygamy has been recognised as injurious to public morals and it can be superseded by the State just as it can prohibit human sacrifice or the practice of sati.”

She has contended that in India, polygamy was traditionally followed by adherent of other religions as well but the same was prohibited “not only because laws dealing with marriage are not a part of religion, but also because the law has to change with time and ensure a life of dignity unmarred by discrimination on the basis of gender.”

“It has been noted in Smt. Sarla Mudgal (supra) that bigamous marriage has been made punishable amongst Christians by the Christian Marriage Act, 1872 (No. XV of 1872), amongst Parsis by the Parsi Marriage and Divorce Act, 1936 (No. III of 1936), and amongst Hindus, Buddhists, Sikhs and Jains by the Hindu Marriage Act, 1955 (No. XXV of 1955). However, the Dissolution of Muslim Marriages Act, 1939 does not secure for Indian Muslim women the protection from bigamy which has been statutorily secured for Indian women belonging to all other religion…”

Bano has contended that “a ban on polygamy has long been the need of the hour in the interest of public order and health.”

On triple talaq (talaq-e-bidat) and nikah halala

Talaq-e –bidat includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations), or in a tuhr after coitus, or pronouncing an irrevocable instantaneous divorce at one go (unilateral triple-talaq).

Bano says that the practice of talaq-e-bidat (unilateral triple-talaq) is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith.

“..according to various noted scholars. Many Islamic nations, including Saudi Arabia, Pakistan, and Iraq, have banned or restricted such practice, while it continues to vex the Indian society in general and Indian Muslim women like the Petitioner in particular. It is submitted that the practice also wreaks havoc to the lives of many divorced women and their children, especially those belonging to the weaker economic sections of the society….

According to many scholars, talaq-e-bidat is not a form of divorce recognised in the Holy Quran as the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. Noted Islamic scholars like Asghar Ali Engineer have opined that talaq-e-ehsan, in which a married Muslim couple is given three months to separate if they wish, and also offers an opportunity to reconcile their differences, is the only acceptable and valid form of talaq.”

Bano has submitted that the practice of talaq-e-bidat and divorce of a woman without proper attempt at reconciliation violates the basic right to live with dignity of every Muslim woman. She cites the fact that many Muslim women have been given talaq over Skype, Facebook and even text messages.

“Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power. Such discrimination and inequality hoarsely expressed in the form of unilateral triple-talaq is abominable when seen in light of the progressive times of the 21st century. Further, once a woman has been divorced, her husband is not permitted take her back as his wife even if he had pronounced talaq under influence of any intoxicant, unless the woman undergoes nikah halala which involves her marriage with another man who subsequently divorces her so that her previous husband can re-marry her.”

Article 25 not absolute

She has submitted that the freedom to practice and propagate religion guaranteed by Article 25 is not absolute but is subject to public order, morality and health.

“It is submitted that a harmonious reading of Part III of the Constitution clarifies that the freedom of conscience and free profession, practice and propagation of religion guaranteed by Article 25 is subject to the fundamental rights guaranteed by Articles 14, 15 and 21. In fact, Article 25 clearly recognises this interpretation by making the right guaranteed by it subject not only to other provisions of Part III of the Constitution but also to public order, morality and health…”

She has, therefore, contended that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937in so far as it seeks to recognise and validate talaq-e-bidat as a valid form of divorce and the practices of nikah halala and polygamy, is void and unconstitutional.

Legislature has failed, UCC an elusive Constitutional goal

The petitioner has not held back while taking a dig at the Legislature for failing to secure the rights of Muslim women.

“It is submitted that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular especially when it concerns matters of marriage, divorce and succession. Despite the observations of this Hon’ble Court for the past few decades, Uniform Civil Code remains an elusive Constitutional goal that the Courts have fairly refrained from enforcing through directions and the Legislature has dispassionately ignored except by way of paying some lip service…..”

She has, therefore, submitted that the issue of gender discrimination against Muslim women under Muslim personal laws, specifically the lack of safeguards against arbitrary divorce and second marriage by a Muslim husband during currency of first marriage notwithstanding the guarantees of the Constitution, needs to be examined by the Supreme Court.

Prayers

The petitioner has, inter alia, sought the following reliefs:

declaring Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it seeks to recognise and validate talaq-e-bidat (triple-talaq), polygamy and nikah halala;

declaring the Dissolution of Muslim Marriages Act, 1939 unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for Indian women belonging to other religions;

declare talaq-e-bidat (triple-talaq), polygamy and nikah halala as unconstitutional.

The Court issued notice to the Central government, Ministry of Minority Affairs and the petitioner’s husband and tagged the case along with the suo moto petition already being heard by the Court. The suo moto petition was registered by the Supreme Court last year after a Bench had taken cognizance of the discrimination faced by Muslim women in the personal sphere relating to marriage and divorce.

Read the petition below. (Click here to download)