Talaq-e-Biddat or Triple Talaq (Instant Divorce) under Muslim Personal Laws declared unconstitutional

The practice of triple talaq, practiced by Sunni male Muslims in India, is the unilateral right to divorce instantly by uttering the word talaq thrice. The petitioner, Shayara Bano, was divorced by her husband on October 10, 2015 by pronouncing triple talaq. She has filed this writ petition challenging the constitutionality of the practice as she contends that such a practice which abruptly, unilaterally, and irrevocably terminates the ties of matrimony and breaches her fundamental rights to equality, non-discrimination, liberty, and dignity. She also contended that the practice is not protected under right to religious freedom and is not sacrosanct to the tenets of Muslim faith. The Court declared the practice to be unconstitutional for being manifestly arbitrary, unreasonable, and contrary to the rule of law. It also held that the practice is not an essential religious practice and does not warrant protection under the right to religious freedom. It held triple talaq being an irrevocable divorce is not an approved form of divorce under Quran as divorce is permissible for reasonable cause and must be preceded by efforts at reconciliation. Since the triple talaq can capriciously and whimsically break the marital tie without attempts to save it, the practice is violative of Article 14 denying equal protection of laws to the Muslim women. It also cited India’s international obligations to further gender equality and eliminate discrimination against women, including in matters of customary law and relied on jurisprudence from other Islamic countries who have reformed divorce law and outlawed extra-judicial forms of divorce such as talaq-e-biddat. The Court refused to remand the matter back to legislature and clarified that where there is a breach of fundamental rights, the Supreme Court is duty bound to safeguard such rights. The minority dissenting judgment held that religious personal laws, such as Shariat applicable on Indian Muslims, is protected under the Constitution. It regarded the practice of triple talaq as an essential religious practice entitled to protection in terms of the constitutional right to freedom of religion. It held that since the practice does not breach ‘public order, morality, and health’ it enjoys constitutional protection despite acknowledging the gender inequality inherent in the practice.