This is the set piece topic of Unit 2 and the most likely essay question in the paper. It is best organised as a sequence, because the story is one of cumulative restriction: the courts first made triple talaq hard to justify, then hard to prove, then construed it into something else, and finally set it aside; Parliament then criminalised it. Each stage used a different technique, and identifying the technique at each stage is what turns a narrative into an argument.
Legal Framework
| Stage | Instrument | Technique used |
|---|---|---|
| 1970 | A Yousuf Rawther v Sowramma, Kerala High Court | Obiter reinterpretation of the sources; the unfettered power called a "popular fallacy" |
| 1981 | Jiauddin Ahmed, Rukia Khatun, Gauhati High Court | Substantive conditions imposed: reasonable cause and two arbiter reconciliation |
| 2002 | Shamim Ara v State of Uttar Pradesh, Supreme Court | Evidential: pronouncement is a fact to be proved by the husband |
| 2007 | Masroor Ahmed v State (NCT of Delhi), Delhi High Court | Construction: three pronouncements read as one revocable talaq; communication and anger requirements |
| 2017 | Shayara Bano v Union of India, Supreme Court, Constitution Bench | Invalidation: set aside, S.2 of the 1937 Act struck down in part by two Judges |
| 2019 | Muslim Women (Protection of Rights on Marriage) Act 2019 | Criminalisation: pronouncement void and illegal, punishable up to three years |
What Triple Talaq Was
Talaq-e-biddat is the pronouncement of talaq three times at one sitting, in one breath, or once in terms making it irrevocable. Its defining feature is that it took effect immediately and irrevocably, so that the iddat period was consumed at a stroke and no opportunity for revocation or reconciliation remained.
Classical status. The Hanafi school treated it as effective though sinful, a position often summarised as bad in theology but good in law. Shia law never recognised it. The Hanafi reasoning was that the husband's power of repudiation is real and its exercise effective however improperly exercised, the impropriety being a matter between him and God rather than a defect in the legal act.
Why that reasoning was the target of every later development: If impropriety does not affect validity, no amount of disapproval can produce a remedy. Every stage in the sequence below is an attempt to convert the disapproval into a legal consequence, and they differ only in the technique chosen.
Stage 1: Reinterpretation of the Sources
Facts: A Hanafi girl of about fifteen married a man roughly twice her age. He left within a day or so of the wedding; after about a month together she returned to her parents. The separation lasted over two years during which he paid no maintenance, saying she had refused to return. She sued for dissolution under S.2(ii) of the Dissolution of Muslim Marriages Act 1939.
Held: The decree of dissolution was upheld. S.2(ii) is satisfied by the objective fact of two years of non maintenance, and the wife's own contribution to that failure does not defeat her claim, following Nur Bibi v Pir Bux. The 1939 Act is beneficial legislation for a weaker section and is to be construed accordingly.
Relevance to this topic: the obiter. Krishna Iyer J argued that Islamic law does recognise wife initiated dissolution (khula) and that the popular Indian belief in the husband's unfettered unilateral power of divorce is a "popular fallacy", produced by the way the law came to be administered rather than by the sources themselves. Mark this as obiter if you rely on it, because the ratio is confined to S.2(ii).
Stage 2: Substantive Conditions
Held: Although a Muslim marriage is a civil contract, a high degree of sanctity attaches to it and dissolution is recognised only in exceptional circumstances. Reading the Quranic verses with Muhammad Ali, Yusuf Ali, Ameer Ali and Fyzee: "talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wife's family, the other from the husband's. If the attempts fail, talaq may be effected." The attempt at reconciliation by two relatives, one from each side, is an essential condition precedent to talaq.
Held: Jiauddin Ahmed correctly laid down the law. Talaq must be for a reasonable cause and preceded by an attempt at reconciliation by two arbiters, one chosen by the wife from her family and the other by the husband from his. Talaq should not be at the mere desire, sweet will, whim or caprice of the husband, and should not be secret. The contrary decisions of the Calcutta High Court (Indian Law Reports 59 Calcutta 833) and the Bombay High Court (Indian Law Reports 30 Bombay 537) were held not to be correct law.
Why Stage 2 mattered and why it was not enough: The Gauhati decisions imposed real substantive limits, and did so by reasoning from within the Quranic sources rather than against them, which made them hard to attack as judicial imposition. But they were High Court decisions facing a contrary Calcutta and Bombay line, so their authority was contested until the Supreme Court settled the matter in Shamim Ara twenty years later. Note also what they did not do: they did not hold triple talaq invalid as a form, only that talaq generally requires cause and reconciliation.
Stage 3: The Evidential Turn
Facts: The wife applied for maintenance under S.125 CrPC in 1979. The Family Court refused it, holding she had been divorced by triple talaq on 11 July 1987. The Allahabad High Court found the alleged divorce had not been pronounced in her presence and had not been shown to have been communicated, but held the divorce stood completed on 5 December 1990 when the husband filed his written statement asserting it, and allowed maintenance only up to that date.
Held: Appeal allowed. A talaq has to be pronounced, and the burden of proving the alleged pronouncement lay on the husband. He adduced no evidence of it, gave no particulars of the circumstances or persons present, showed no reasons in justification, and neither pleaded nor proved any attempt at reconciliation. A plea of previous divorce in a written statement cannot at all be treated as a pronouncement of talaq on the date of filing followed by delivery of a copy to the wife. The Court expressly approved Jiauddin Ahmed and Rukia Khatun.
Relevance: The decisive intermediate step. It settled the Gauhati rule with Supreme Court authority and, independently, made triple talaq extremely difficult to establish in practice.
Why the evidential technique was so effective: It required no holding that the practice was invalid, and therefore no confrontation with Art.25. It simply insisted that a party asserting a legal consequence prove the facts that produce it. In practice most triple talaqs surfaced only as a defence to a maintenance claim, asserted long after the event with no particulars. Once the burden was placed on the husband, that defence largely stopped working. This is worth stating explicitly, because it shows a court achieving a substantive result through a procedural rule.
Stage 4: Construction
Held: Four propositions. (a) A triple talaq, talaq-e-biddat, even for Sunni Muslims, is to be regarded as one revocable talaq, which preserves the iddat period for reflection, revocation and reconciliation. (b) A talaq pronounced in extreme anger, where the husband has lost control of himself, is not effective. (c) Communication to the wife is an essential element of pronouncement; talaq takes effect on the date communicated, and if never communicated it does not take effect at all. (d) Refinement of the reconciliation rule: where the talaq is irrevocable the attempt must precede pronouncement, but where it is revocable it may come before or after, provided it is before the end of iddat.
Relevance: The Delhi High Court reached in 2007, by construction, the practical result the Supreme Court reached in 2017 by invalidation. Note the difference in technique: Masroor Ahmed did not say triple talaq is void, it said triple talaq means one revocable talaq.
Why construing down was an attractive technique: It avoided the constitutional question entirely, and it could be justified purposively: the iddat period exists so that the parties may reflect and reconcile, and treating three words uttered in one breath as three separate talaqs destroys that period and defeats the purpose the classical scheme itself serves. Construing them as one preserves it. The technique also had classical support, the mufti's fatwa in the case itself being to that effect, which is why the Court could present the construction as internal to Islamic law rather than imposed on it.
Stage 5: Invalidation
Facts: The petitioner's husband ended their marriage of some fourteen to fifteen years by instantaneous triple talaq communicated by letter. She petitioned under Art.32 for a declaration that talaq-e-biddat was void ab initio and that S.2 of the Muslim Personal Law (Shariat) Application Act 1937 was unconstitutional to the extent it recognised the practice. She also challenged polygamy and nikah halala, which the Court left for another day.
Held: Set aside by a majority of three to two:
| Judge | Position | Ground |
|---|---|---|
| R F Nariman J and U U Lalit J (joint opinion) | Majority | Instant and irrevocable talaq forecloses reconciliation, is manifestly arbitrary, and violates Art.14. S.2 of the 1937 Act, being "law in force" within Art.13(1), struck down to the extent it recognises the practice. Art.15 expressly not decided |
| Kurian Joseph J | Majority, different ground | The Quran attaches sanctity to matrimony and requires reconciliation with the possibility of revocation before talaq attains finality. Triple talaq closes that door, so it is contrary to the basic tenets of the Quran and violates Shariat itself. Disagreed that the practice is integral to the denomination; added that harmonising religion with constitutional rights is for the legislature |
| J S Khehar CJ and S Abdul Nazeer J | Dissent | Talaq-e-biddat is part of the personal law of Sunni Muslims and satisfies Art.25. Directed the Union to consider legislation and injuncted husbands from pronouncing it for six months, the injunction to continue if the legislative process began within six months |
Relevance: The central case. Only two of the five Judges held the 1937 Act unconstitutional in part.
Why the split matters and is worth a paragraph of its own: The three Judges in the majority did not agree on why the practice fails. Nariman and Lalit JJ decided a constitutional question and struck down part of a statute. Kurian Joseph J decided a question internal to Islamic law and expressly said it is not for courts to direct legislation. So the constitutional route, which is the one relied on in later litigation such as the pending challenge to the inheritance provisions of the 1937 Act, commanded only two votes out of five, while the operative order setting the practice aside had three. Any answer that describes the case as a three Judge holding that triple talaq is unconstitutional misstates it.
The most valuable doctrinal yield of the case is the holding that S.2 of the 1937 Act is "law in force" within Art.13(1). That is the gateway through which Muslim personal law becomes amenable to constitutional challenge at all, and it is what the pending Shariat Act litigation depends on.
Stage 6: Criminalisation
The Muslim Women (Protection of Rights on Marriage) Act 2019, Act No. 20 of 2019, assented to on 31 July 2019 and in force retrospectively from 19 September 2018.
| Section | Provision |
|---|---|
| S.2 | "Talaq" means talaq-e-biddat or any other similar form resulting in instantaneous and irrevocable divorce |
| S.3 | Any pronouncement, whether spoken, written, in electronic form or in any other manner, is void and illegal |
| S.4 | Punishable with imprisonment up to three years, and fine |
| S.5 | Subsistence allowance for the woman and her dependent children, as the Magistrate determines |
| S.6 | Custody of minor children to the woman, as the Magistrate determines |
| S.7 | (a) cognizable, but only on information from the woman or a person related to her by blood or marriage; (b) compoundable at her instance with the Magistrate's permission; (c) no bail unless the Magistrate, on the accused's application and after hearing the woman, is satisfied of reasonable grounds |
Anticipatory bail is not barred, provided the complainant woman is heard before it is granted.
The central paradox. If the talaq is void, the marriage never ended and the woman is still a wife. Yet the husband may be imprisoned for up to three years for an act that changed nothing in law. The immediate practical objection follows: a wife whose husband is in prison is unlikely to be maintained by him, so the Act may operate against the interest it was passed to protect. S.5 and S.7(b) are the drafter's answers to that objection.
Petitions under Art.32 were filed almost immediately: Samastha Kerala Jamiathul Ulema on 2 August 2019 and Jamiat Ulama i Hind on 22 August 2019. The Supreme Court agreed to examine validity on 23 August 2019. An earlier challenge to the 2018 Ordinance had been dismissed in March 2019.
Grounds pleaded include Arts.14, 15, 19, 20, 21, 25, 26 and 123. The principal arguments are that criminalising one mode of divorce in one religion, while marriage and divorce in other religions are left to civil remedies, is discriminatory; and that after Shayara Bano no circumstance existed requiring the enactment at all.
The Union filed a counter affidavit in August 2024, contending that the practice is fatal to the institution of marriage and that the 2017 judgment has not worked as a sufficient deterrent. In January 2025 the Court directed the Centre to furnish details of FIRs and chargesheets registered under the Act.
The position could not be verified beyond January 2025 and no final judgment was traced. Treat the challenge as pending, and verify before relying on it.
Critical Assessment
| For the Act | Against the Act |
|---|---|
| A declaration of invalidity without a sanction had demonstrably not stopped the practice | Once the talaq is void, the pronouncement changes nothing in law, so there is no harm to punish |
| Deters an act causing immediate destitution and social humiliation | Singles out one community's mode of divorce for penal treatment, raising Arts.14 and 15 objections |
| S.5 and S.6 give immediate relief on allowance and custody | Imprisoning the husband removes the source of the maintenance the Act itself provides for |
| S.7(a) confines the power to complain to the woman and her close relations, answering the main criticism of the 2018 Ordinance | Three years is disproportionate for an act declared legally ineffective by the same statute |
| S.7(b) preserves reconciliation through compounding | Bail is structurally restricted under S.7(c) |
| Responds to the Shayara Bano dissent's own invitation to Parliament | Shamim Ara and Shayara Bano had already made the practice ineffective and hard to prove |
The strongest point on each side, if you have room for only one: For the Act, that a legal declaration unaccompanied by a sanction had not changed behaviour. Against it, that the statute punishes an act which the same statute declares to be legally ineffective, which is hard to justify on any theory of criminal law requiring harm.
Illustrations
-
Technique matters. A husband asserts a triple talaq pronounced in 2015, before Shayara Bano. Even on the pre 2017 law he faces Shamim Ara: he must prove the pronouncement with particulars, show reasonable cause, and show an attempt at reconciliation. So the case may be decided without reaching the validity of the form at all.
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Construction versus invalidation. A triple talaq pronounced in 2010. Under Masroor Ahmed it would be construed as one revocable talaq, so the marriage would subsist during iddat and could be revoked. Under the post 2017 law it is simply void. The two routes produce different reasoning and, in a case where iddat has long expired, different results.
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Electronic talaq. A husband sends a triple talaq by message in 2026. S.3 of the 2019 Act expressly covers electronic form, so the pronouncement is void and illegal and he is liable under S.4.
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Who may complain. A neighbour lodges an FIR on learning of a triple talaq. The police cannot proceed: S.7(a) makes the offence cognizable only on information from the woman or a person related to her by blood or marriage. Her brother could inform; the neighbour cannot.
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The paradox in operation. A wife whose triple talaq is void remains a wife. She therefore claims maintenance as a wife under S.144 BNSS, and the Muslim Women (Protection of Rights on Divorce) Act 1986 does not arise at all, there having been no divorce. She may in addition claim a subsistence allowance under S.5 of the 2019 Act.
Recall Check
- Set out the six stages by which triple talaq was restricted, naming the instrument and the technique used at each.
- In Shayara Bano, identify the majority and dissenting Judges, the ground taken by each majority opinion, and how many held the 1937 Act unconstitutional.
- State the central paradox of the 2019 Act and the two provisions designed to mitigate it.
Key Cases
Shayara Bano v Union of India (2017) Shayara Bano v Union of India 2017
Issue: Whether talaq-e-biddat is valid, and whether S.2 of the 1937 Act is unconstitutional to the extent it recognises it.
Rule: Nariman and Lalit JJ: manifestly arbitrary, violative of Art.14; S.2 void to that extent under Art.13(1); Art.15 not decided. Kurian Joseph J: contrary to the Quran and therefore to Shariat itself. Khehar CJI and Nazeer J dissenting: protected under Art.25, reform for Parliament.
Held: Set aside by three to two. Only two Judges held the 1937 Act unconstitutional. Halala and polygamy left undecided; the dissent injuncted pronouncement for six months.
Shamim Ara v State of Uttar Pradesh (2002) Shamim Ara v State of UP 2002
Issue: Whether a plea of previous divorce in a written statement amounts to a pronouncement.
Rule: A talaq must be pronounced and proved by the husband, must be for reasonable cause, and must be preceded by an attempt at reconciliation. A pleading is not a pronouncement.
Held: The marriage did not stand dissolved; maintenance continued. Jiauddin Ahmed and Rukia Khatun expressly approved.
Masroor Ahmed v State (NCT of Delhi) (2007) Masroor Ahmed v State NCT of Delhi 2007
Issue: Whether a triple talaq pronounced in anger and never communicated dissolved the marriage.
Rule: Triple talaq counts as one revocable talaq; a talaq in extreme anger is ineffective; communication is essential; reconciliation must precede an irrevocable talaq but may follow a revocable one within iddat.
Held: The marriage subsisted; the FIR was quashed.
Sri Jiauddin Ahmed v Mrs Anwara Begum (1981) Jiauddin Ahmed v Anwara Begum 1981
Issue: The requirements of a valid talaq.
Rule: Reasonable cause, and reconciliation by two arbiters, one from each family, as an essential condition precedent.
Held: No valid talaq established.
Mst Rukia Khatun v Abdul Khalique Laskar (1981) Rukia Khatun v Abdul Khalique Laskar 1981
Issue: Whether Jiauddin Ahmed correctly stated the law.
Rule: It did. Talaq must not be at the mere desire, sweet will, whim or caprice of the husband, and must not be secret.
Held: Division Bench affirmation; the contrary Calcutta and Bombay decisions held not correct law.
A Yousuf Rawther v Sowramma (1970) Yousuf Rawther v Sowramma 1971
Issue: Whether S.2(ii) of the 1939 Act requires the wife to be blameless.
Rule: No; the ground is satisfied by the objective fact of two years of non maintenance.
Held: Decree of dissolution upheld. Relevant here for Krishna Iyer J's obiter that the unfettered unilateral power of divorce is a "popular fallacy".
Distinctions
| Basis | Masroor Ahmed approach (2007) | Shayara Bano approach (2017) |
|---|---|---|
| Technique | Construction: three pronouncements mean one revocable talaq | Invalidation: the practice is set aside |
| Constitutional question | Avoided entirely | Decided, by two of five Judges |
| Effect on the marriage | Subsists during iddat, revocable | The pronouncement is void; the marriage was never dissolved |
| Source of legitimacy claimed | Internal to Islamic law, supported by the fatwa in the case | Art.14 and Art.13 for two Judges; the Quran for one |
| Status today | Superseded in practical effect, but the communication and anger holdings remain good law | The governing position, reinforced by the 2019 Act |
| Basis | Position after Shayara Bano (2017) | Position after the 2019 Act |
|---|---|---|
| Legal effect of pronouncement | Void; the marriage subsists | Void and illegal |
| Consequence for the husband | None beyond the failure of the talaq | Criminal liability up to three years and fine |
| Relief for the woman | Ordinary civil and criminal maintenance remedies | Subsistence allowance under S.5, custody under S.6, in addition |
| Who may initiate proceedings | Not applicable | Only the woman or a person related to her by blood or marriage |
| Basis | Nariman and Lalit JJ | Kurian Joseph J |
|---|---|---|
| Route | Constitutional | Internal to Islamic law |
| Provision relied on | Arts.13(1) and 14 | The Quran, and hence the Shariat |
| Effect on S.2 of the 1937 Act | Struck down to the extent it recognises triple talaq | Not struck down; the practice held never to have been protected |
| View on judicial legislation | Not addressed | Expressly said it is not for courts to direct legislation |
| Votes | Two | One |
Flashcards
What was the classical Hanafi position on talaq-e-biddat?
That it was effective though sinful, summarised as bad in theology but good in law. Shia law never recognised it.
What did Krishna Iyer J call the belief in an unfettered unilateral power of divorce?
A "popular fallacy", in obiter in A Yousuf Rawther v Sowramma (1970).
What two substantive conditions did the Gauhati High Court impose on talaq?
That it be for reasonable cause, and that it be preceded by an attempt at reconciliation by two arbiters, one from the wife's family and one from the husband's.
Which Supreme Court decision approved the Gauhati rule?
Shamim Ara v State of Uttar Pradesh (2002) 7 SCC 518.
What was the evidential holding in *Shamim Ara*?
That a talaq has to be pronounced, the burden of proving the pronouncement lies on the husband with particulars, and a plea of previous divorce in a written statement is not a pronouncement.
How did *Masroor Ahmed* deal with triple talaq?
By construing three pronouncements at one time as one revocable talaq, preserving the iddat period for reflection, revocation and reconciliation.
What two further requirements did *Masroor Ahmed* lay down?
That a talaq pronounced in extreme anger with loss of self control is ineffective, and that communication to the wife is an essential element of pronouncement.
What was the split in *Shayara Bano* and who was in each camp?
Three to two. Majority: Kurian Joseph J, and Nariman and Lalit JJ in a joint opinion. Dissent: Khehar CJI and Nazeer J.
On what ground did Nariman and Lalit JJ decide?
That instant and irrevocable talaq forecloses reconciliation, is manifestly arbitrary and violates Art.14, and that S.2 of the 1937 Act is law in force under Art.13(1) and void to that extent. They expressly declined to decide Art.15.
On what ground did Kurian Joseph J decide?
That the practice is contrary to the basic tenets of the Quran and therefore violates the Shariat itself, a ground that is not constitutional.
How many Judges in *Shayara Bano* held the 1937 Act unconstitutional?
Only two, Nariman and Lalit JJ.
What did the dissent do besides upholding the practice?
It directed the Union to consider legislation and injuncted Muslim husbands from pronouncing talaq-e-biddat for six months, the injunction to continue if the legislative process began within that period.
What is the central paradox of the 2019 Act?
The talaq is void, so the marriage subsists and the pronouncement changes nothing in law, yet the husband may be imprisoned for up to three years for it.
Which two provisions of the 2019 Act mitigate that paradox?
S.5, giving the woman a subsistence allowance, and S.7(b), making the offence compoundable at her instance with the Magistrate's permission.
Exam Scenario
Problem: "The abolition of triple talaq in India was the work of the courts, not of Parliament, and the Muslim Women (Protection of Rights on Marriage) Act 2019 added nothing but a prison sentence." Critically examine.
Step 1: Accept the first half of the proposition through the sequence
| Stage | Instrument | Technique |
|---|---|---|
| 1 | Yousuf Rawther (1970) | Reinterpretation of the sources; obiter but influential |
| 2 | Jiauddin Ahmed and Rukia Khatun (1981) | Substantive conditions: reasonable cause and two arbiter reconciliation |
| 3 | Shamim Ara (2002) | Evidential: the pronouncement is a fact the husband must prove |
| 4 | Masroor Ahmed (2007) | Construction: three pronouncements mean one revocable talaq |
| 5 | Shayara Bano (2017) | Invalidation: set aside; S.2 of the 1937 Act struck down in part |
| 6 | 2019 Act | Criminalisation: void and illegal, punishable up to three years |
The Gauhati decisions reasoned from within the Quranic sources, which made them hard to attack as judicial imposition, and Rukia Khatun additionally disapproved the contrary Calcutta and Bombay line.
The evidential turn was the most effective. Most triple talaqs surfaced only as a defence to a maintenance claim, asserted long afterwards with no particulars, so placing the burden on the husband largely destroyed the defence without any need to confront Art.25.
Masroor Ahmed then reached in 2007, by construction, the practical result of 2017, while avoiding the constitutional question altogether.
Step 2: State Shayara Bano precisely
Set aside by three to two, the majority split on the reasoning.
| Judges | Position | Ground |
|---|---|---|
| Nariman and Lalit JJ (joint opinion) | Majority | Instant and irrevocable talaq forecloses reconciliation, is manifestly arbitrary, violates Art.14; S.2 of the 1937 Act, being law in force under Art.13(1), struck down to that extent. Art.15 expressly not decided |
| Kurian Joseph J | Majority, different ground | Contrary to the basic tenets of the Quran, and so in violation of Shariat itself; expressly disclaimed judicial legislation |
| Khehar CJI and Nazeer J | Dissent | Protected personal law under Art.25; reform for Parliament, with a six month injunction meanwhile |
The most durable yield of the case is the holding that S.2 of the 1937 Act is "law in force" within Art.13(1), the gateway relied on in the pending challenge to the inheritance provisions.
Step 3: Qualify the first half rather than endorsing it
The dissent, half the Bench on the constitutional question, held the practice protected under Art.25 and directed Parliament to legislate, injuncting pronouncement for six months meanwhile.
So it is not accurate to say the courts acted and Parliament was irrelevant. Two of the five Judges thought Parliament the only proper actor, and the Government expressly relied on that invitation.
Step 4: Answer the second half, that the Act added only a prison sentence
Concede that the Act added no civil consequence: the talaq was already void after 2017, so S.3 declares a voidness that already existed. Then identify what it genuinely added.
- The criminal sanction under S.4, imprisonment up to three years and fine.
- A subsistence allowance under S.5 and custody of minor children under S.6, civil reliefs obtainable through a Magistrate and not previously available in that form.
- A carefully constructed procedural regime in S.7: the power to complain confined to the woman and her close relations, the offence compoundable at her instance, and the woman to be heard before bail.
Those were the drafter's answers to the criticisms of the 2018 Ordinance and should be credited before being criticised.
Step 5: Deploy the critical assessment in two columns
| For the Act | Against the Act |
|---|---|
| A declaration of invalidity without a sanction had not stopped the practice in fact, which is the Union's own case in its August 2024 counter affidavit | The statute punishes an act it simultaneously declares legally ineffective, hard to justify on any theory of criminal law requiring harm |
| S.5 and S.6 give immediate relief on allowance and custody | Imprisoning the husband removes the source of the very maintenance the Act provides for |
| S.7 confines complaint to the woman and her close relations and preserves reconciliation by compounding | Criminalising one community's mode of divorce while leaving others to civil remedies raises Arts.14 and 15 |
Step 6: Note the live position, with caution
Petitions filed in August 2019 remain pending. The Court agreed to examine validity on 23 August 2019, the Union filed its counter affidavit in August 2024, and in January 2025 the Court sought FIR and chargesheet details.
No final judgment has been traced, so the constitutional question the essay raises is still open.
The allocation in Shayara Bano. Only two of five Judges, Nariman and Lalit JJ, held S.2 of the 1937 Act unconstitutional, so the constitutional route commanded a minority even within the majority. Kurian Joseph J concurred on a ground internal to Islamic law. Do not describe the case as a three Judge constitutional holding.
What was left open. Art.15 was not decided, and nikah halala and polygamy were left for another day.
The marks lie in the technique. Identify the technique used at each stage rather than narrating the cases.
Verify the pending challenge. Nothing could be traced beyond January 2025, so treat the challenge as pending and check before relying on it.
Conclusion. The courts did the doctrinal work and Parliament supplied the sanction, and on the Government's own reasoning neither was sufficient alone. The durable achievement of the litigation is not the abolition of one practice but the establishment that S.2 of the 1937 Act is amenable to constitutional scrutiny, which is what makes the current inheritance challenge possible.
See Also
- Modes of Talaq : the three forms, and the requirements of a valid pronouncement.
- The Muslim Women (Protection of Rights on Marriage) Act, 2019 : the Act treated section by section, with the pending challenge.
- Sources of Muslim Law : the source hierarchy on which Kurian Joseph J's reasoning depends.
- Operation and Application of Muslim Law : S.2 of the 1937 Act as law in force under Art.13(1).
- Maintenance under Muslim Law : why a void talaq leaves the woman claiming as a wife.