Shayara Bano, and the Act of 2019

In one line

Three judges of five set aside instant triple talaq for three different reasons, and Parliament then criminalised a pronouncement the Court had already declared to have no legal effect.

In the wording a student can write in an exam: in Shayara Bano v. Union of India a Bench of five, by a majority of three to two, set aside the practice of talaq-e-biddat, the pronouncement of talaq three times at one sitting. Of the majority, Kurian Joseph J. held that what is bad in theology cannot be good in law and that the practice is not an essential part of the religion; Nariman and Lalit JJ. held that talaq-e-biddat was RECOGNISED BY SECTION 2 of the Muslim Personal Law (Shariat) Application Act 1937 and was therefore statutory "law" within article 13, and that it was MANIFESTLY ARBITRARY and so violated article 14. The minority, Khehar C.J.I. and Nazeer J., held that the practice could not be struck down on the grounds article 25(1) permits, namely public order, health and morality, since it does not impinge on any of them, and would have injuncted it for six months while Parliament legislated. Parliament then enacted the Muslim Women (Protection of Rights on Marriage) Act 2019, section 3 of which makes any pronouncement of talaq void and illegal and section 4 of which makes it punishable with imprisonment up to three years.

The judgment

In Shayara Bano v. Union of India, (2017) 9 SCC 1; AIR 2017 SC 4609, decided on 22 August 2017. Facts. Shayara Bano, divorced by talaq-e-biddat, the pronouncement of talaq three times at one sitting, petitioned under article 32 for a declaration that the practice was unconstitutional. Her petition was heard with a suo motu writ petition on Muslim women's entitlements and with the petitions of Ishrat Jahan and Atiya Sabri. The respondents argued that personal law is protected by article 25(1) and that reform must come from the legislature.

Held. By a majority of three to two the practice of talaq-e-biddat was SET ASIDE.

Kurian Joseph J. held that WHAT IS BAD IN THEOLOGY CANNOT BE GOOD IN LAW and that the practice is not an essential part of the religion. This route avoids article 13 entirely: it asks whether the practice is protected at all, not whether it is void.

Nariman and Lalit JJ. held that talaq-e-biddat was RECOGNISED by section 2 of the Muslim Personal Law (Shariat) Application Act 1937, which makes Muslim personal law the rule of decision in questions of dissolution of marriage "including talaq, ila, zihar, lian, khula and mubaraat", and was therefore statutory "law" within article 13; and that it was MANIFESTLY ARBITRARY, since it permits a marital tie to be broken capriciously and whimsically without any attempt at reconciliation, and so violated article 14.