Shayara Bano v. Union of India & Others
Bench: Constitution Bench — 5 Judges (J.S. Khehar CJ, Kurian Joseph, R.F. Nariman, U.U. Lalit & S. Abdul Nazeer JJ)
Parties
Facts of the Case
Shayara Bano was divorced by her husband through triple talaq (talaq-ul-biddat) — the practice of instantaneous divorce by a Muslim husband pronouncing the word 'talaq' three times in one sitting. She had been married for 15 years and was subjected to domestic violence and other cruelties. After being divorced in this manner, she petitioned the Supreme Court challenging the constitutional validity of triple talaq, polygamy, and nikah halala as violating her fundamental rights. Multiple Muslim women's organisations and the All India Muslim Personal Law Board (AIMPLB) were impleaded.
Legal Issues Before the Court
- 1Is talaq-ul-biddat (triple talaq in one sitting) unconstitutional as violating Articles 14 and 21 of the Constitution?
- 2Can the Court examine the constitutionality of personal law practices under the Constitution's fundamental rights provisions?
- 3Is triple talaq protected as a religious practice under Article 25 (freedom of religion)?
- 4What is the relationship between personal law and fundamental rights in India?
The Judgment
By a 3:2 majority, the Constitution Bench declared talaq-ul-biddat (triple talaq) unconstitutional. However, there was no clear majority on the precise reasoning: Chief Justice Khehar (for himself and Justice Nazeer) held that triple talaq is protected religious practice under Article 25 but should be set aside on the basis of the AIMPLB's undertaking; Justices Nariman and Lalit held it violates Article 14 as manifestly arbitrary; Justice Kurian Joseph held it is contrary to the Quran and therefore not protected even by Article 25. The net result — triple talaq is unconstitutional — was clear. Subsequently, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises triple talaq.
Key Principles Laid Down
TRIPLE TALAQ (TALAQ-UL-BIDDAT) IS UNCONSTITUTIONAL: Instantaneous triple talaq in a single sitting — giving a husband the power to unilaterally and irrevocably dissolve a marriage by saying 'talaq' three times — violates the constitutional right to equality. The practice is set aside by a 3:2 majority.
MANIFEST ARBITRARINESS VIOLATES ARTICLE 14 (NARIMAN J): Justices Nariman and Lalit held that triple talaq is manifestly arbitrary — it gives a husband absolute, unilateral power to irrevocably dissolve a marriage instantaneously, with no procedural safeguard, no ground requirement, and no opportunity for the wife to contest. Such absolute arbitrariness violates Article 14.
NOT ESSENTIAL RELIGIOUS PRACTICE (KURIAN J): Justice Kurian Joseph held that triple talaq has no sanction in the Quran — the Quran requires a gradual process for divorce with opportunities for reconciliation. Therefore it cannot claim protection as an essential religious practice under Article 25.
PERSONAL LAW CAN BE TESTED AGAINST FUNDAMENTAL RIGHTS: The judgment confirmed (though divided on reasoning) that personal law practices — including Muslim personal law — can be examined for constitutional validity under Articles 14 and 21. Personal law is not entirely immune from constitutional scrutiny.
MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT 2019: Following Shayara Bano, Parliament enacted the 2019 Act which criminalises the pronouncement of triple talaq by any Muslim husband with up to three years' imprisonment. This transformed the constitutional invalidity (from the judgment) into a criminal offence (through legislation).
POLYGAMY AND NIKAH HALALA NOT DECIDED: The Supreme Court specifically did not address the challenges to polygamy and nikah halala in this case — those questions were kept open. They remain pending before a Constitution Bench.
Impact on Indian Law
Shayara Bano (2017) ended the practice of instantaneous triple talaq in India — a practice that had left Muslim women vulnerable to arbitrary divorce with no recourse. The 2019 Act gave the judgment legislative reinforcement. The case is also significant for the broader principle that personal law is subject to constitutional scrutiny — a principle that has implications for Hindu, Christian, and other personal law systems. The unresolved questions on polygamy and nikah halala remain constitutionally pending.
Frequently Asked Questions
What did Shayara Bano decide about triple talaq?
Shayara Bano v. Union of India (2017) declared talaq-ul-biddat (instantaneous triple talaq) unconstitutional by a 3:2 majority of the Supreme Court's Constitution Bench. Justices Nariman and Lalit held it manifestly arbitrary under Article 14. Justice Kurian Joseph held it is not sanctioned by the Quran and therefore not an essential religious practice. Subsequently, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalising triple talaq.
Is triple talaq now a criminal offence in India?
Yes. Following Shayara Bano (2017), Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. Under this Act, pronouncing triple talaq — instantaneous divorce by saying 'talaq' three times — by a Muslim husband is a cognisable, non-compoundable offence punishable with up to three years' imprisonment and fine. The wife can also claim subsistence allowance and custody of minor children.