Why this matters now
Shayara Bano is tested for the 3:2 split, the Article 14 reasoning, the distinction between personal law and statutory law, and the 2019 Act criminalising triple talaq with up to 3 years imprisonment.
Facts: five women, five talaqs
Shayara Bano, of Kashipur (Uttarakhand), received instant talaq from her husband by post in 2015 after 15 years of marriage. She challenged the practice and was joined by four other women (Aafreen Rehman, Gulshan Parveen, Ishrat Jahan, Atiya Sabri) who had similarly been divorced by triple talaq. Petitioners argued the practice violated Articles 14, 15, 21 and 25.
The All India Muslim Personal Law Board (AIMPLB) argued that triple talaq was an essential religious practice protected under Article 25.
The 3:2 verdict
The 5-judge Constitution Bench (one judge from each of India’s major faiths) on 22 August 2017:
- Majority (3) — Justices Nariman, U.U. Lalit (joining), and Joseph Kurian: Triple talaq is unconstitutional.
- Justices Nariman + Lalit: Triple talaq violates Article 14 — it is manifestly arbitrary because it permits unilateral, instantaneous, irrevocable divorce. It is part of the Muslim Personal Law (Shariat) Application Act 1937, which IS a “law” for Article 13 purposes.
- Justice Kurian: Triple talaq is NOT “an essential religious practice” under Article 25. The Quran itself disapproves of instant talaq; the Hanafi school’s practice cannot override Quranic injunctions.
- Minority (2) — CJI Khehar and Justice Nazeer: Triple talaq IS an essential religious practice protected under Article 25; the proper remedy is legislation, not judicial striking down.
Muslim Women (Protection of Rights on Marriage) Act 2019
Parliament passed the Muslim Women (Protection of Rights on Marriage) Act 2019, replacing two previous ordinances:
- Pronouncing triple talaq by a Muslim husband is void and illegal.
- Pronouncing it is a cognizable and non-bailable offence with up to 3 years imprisonment + fine.
- Wife entitled to subsistence allowance from the husband.
- Wife entitled to custody of minor children.
Multiple petitions challenging the criminal-law aspect (over-criminalisation of personal-law disputes) are pending in the SC.
UPSC angle
Know Shayara Bano v. Union of India 22 Aug 2017 — 5-judge bench 3:2 (one judge from each major faith); petitioners Shayara Bano (Kashipur) + 4 others (Aafreen Rehman/Gulshan Parveen/Ishrat Jahan/Atiya Sabri); HELD triple talaq (talaq-e-biddat / instant talaq) is UNCONSTITUTIONAL; majority Justices Nariman+Lalit on Article 14 manifest arbitrariness + Justice Kurian on Article 25 (not essential religious practice; Quran disapproves); dissent CJI Khehar + Justice Nazeer; led to Muslim Women (Protection of Rights on Marriage) Act 2019 = void and illegal + cognizable non-bailable 3 yr jail + fine + subsistence allowance + custody of minor children.
Frequently asked questions
What did Shayara Bano decide?
By 3:2, the SC struck down triple talaq (talaq-e-biddat) as unconstitutional — violative of Article 14 and not an essential religious practice.
Was the dissent on Article 25?
Yes — CJI Khehar and Justice Nazeer held that triple talaq was an essential religious practice and only legislation could change it.
What did the 2019 Act do?
Made pronouncing triple talaq a cognizable, non-bailable offence with up to 3 years imprisonment, and made the pronouncement itself void and illegal.
Was Shayara Bano married throughout?
By the time of the judgment her husband had already filed for divorce by triple talaq in 2015 and the dispute was litigated for over 2 years.