Tripple Talaq Judgment Brief

Tripple Talaq Judgment Brief

Title of the Case – The Triple Talaq Judgment

Name of the caseShayara Bano & ors vs. Union of India and ors., W.P. (C) No. 118 of 2016

Date of Judgment 22nd Aug, 2017

Judges: Chief Justice of India Jagdish Singh Khehar, Justice Kurain Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer

Subject and sections involved Muslim Personal Law (Shariat) Application Act, 1937


  1. Does the judgment of the Privy Council in the Rashid Ahmad Case, upholding ‘talaq-e-biddat’, require a relook?
  2. Has ‘talaq-e-biddat’ which is concededly sinful, sanction of law?
  3. Is the practice of ‘Talaq-e-biddat’ approved/disapproved/disapproved by “hadiths”?
  4. Is the practice of ‘talaq-e-biddat’, a matter of faith for Muslims? If yes, whether it is a constituent of their ‘personal law’?
  5. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation?
  6. Does ‘talaq-e-biddat’, violate the parameters expressed in Article 25 of the Constitution?

Fact of the Case:

Triple Talaq was challenged in several petition, which were clubbed together, to decided once and for all.

Ratio of the case -

The constitutional bench of Supreme Court comprising of Justice Kurian Joseph, a catholic, Justice UU Lalit, a Hindu and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh and Justice Abdul Nazeer, a Muslim, declared Triple Talaq or Talaq-e Biddat as unconstitutional by a 3:2 majority. Justices Kurian, Lalit and Nariman delivered the majority judgement while Chief Justice Khehar and Justice Nazeer dissented with the majority.



Practice Modes of ‘talaq’ amongst Muslim

Talaq understood simply, is a means of divorce, at the instance of the husband. ‘Khula’, is another mode of divorce, this divorce is at the instance of the wife. The third category of divorce is ‘mubaraat’ – divorce by mutual consent.

‘Talaq’, namely, divorce at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’.

‘Talaq-e-ahsan’ is a single pronouncement of ‘talaq’ by the husband, followed by a period of abstinence. The period of abstinence is described as ‘iddat’. The duration of the ‘iddat’ is ninety days or three menstrual cycles (in case, where the wife is menstruating). Alternatively, the period of ‘iddat’ is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the expiry of the ‘iddat’ period. It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh ‘nikah’ (-marriage), with a fresh ‘mahr’.

Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again. After the second pronouncement of ‘talaq’, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified). And after the third ‘iddat’, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry.

The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.

Majority View by Justice R.F. Nariman, Justice U.U. Lalit and Justice Kurian Jospeh

The bench held that the practice of Triple talaq is arbitrary in nature by observing the following: "It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the 393 fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act (Muslim Personal Law Shariat Application Act), insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him."

Minority View by Justice Abdul Nazeer and CJI Khehar

we are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to 'Talaq-e-Biddat'. We hope and expect that the contemplated legislation will also take into consideration advances in Muslim 'personal law' – 'Shariat', as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind.

Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing 'talaq-e-biddat' as a means for severing their matrimonial relationship.

The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining 'talaq-e-biddat' (three pronouncements of 'talaq', at one and the same time) – as one, or alternatively, if it is decided that the practice of 'talaq-e-biddat' be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate".



Shahjahanpur Law Student Rape Case: Explained

Shahjahanpur Law Student Rape Case: Explained

On August 23, a 23-year-old law student at Swami Shukdevanand Postgraduate College in Shahjahanpur, one of the colleges run by the Mumukshu Ashram, had posted a video on the social media, accusing Swami Chinamayanand, the director of her college, of sexually harassing her and threatening to kill her and her family as she had evidence that could land him in trouble. Just a day after she uploaded the video, the woman went missing on August 24 and was tracked down six days later and found in Rajasthan on August 30. Police officials stated that she and her family were given protection in view of the events.

The student also alleged that she was raped and exploited for over a year by the BJP leader. She also alleged that the Shahjahanpur Police in Uttar Pradesh had refused to file her FIR and hence, she decided to file a complaint in Delhi. The woman also accused the local District Magistrate of trying to threaten her parents for complaining against Chinmayanand.

On 29th August the Supreme Court took suo moto cognizance of the case after a group of female lawyers requested the court to initiate proceedings over the matter of missing law student.

On September 2, the Supreme Court ordered a Special Investigation Team (SIT) to look into the case.

On September 10, the man who claimed to be the brother of the victim handed over a pen drive to the SIT. The victim and her brother have claimed that if the SIT does a fair probe, this pen drive has some vital evidence against Chinmayanand. Victim’s brother claimed that the pen drive contains a video that is enough to expose the "real face" of the BJP leader. 

Responding to the allegations, Chinmayanand stated that he was “being framed.” "I do not want to influence the SIT probe into the matter but I am confident that the inquiry will reveal the truth," Chinmayanand said at a press conference.

Recently, the law student she circulated a video message threatening to commit self-immolation if the police did not file rape charges against Chinmayanand.

Besides this, there are also allegations that the woman's three friends tried to extort Rs 5 crore from Chinmayanand.

Speaking to the media, Arora, who heads the SIT, said, "Swami Chinmayanand has admitted to almost every allegation leveled against him, including sexual conversations and a body massage.

Chinmayanan has been booked under the Indian Penal Code (IPC) for trying to seduce a woman for sexual intercourse not amounting to rape, stalking, wrongful confinement and criminal intimidation. According to the SIT, the woman also contacted one of the three people arrested for extortion 4,200 times last year. Police said her involvement in the case is being investigated.

Swami Chinmayanand was on 20 September arrested by the Uttar Pradesh Special Investigation Team (SIT) that is probing the case. An official said that he was taken for medical examination to Shahjahanpur district hospital.

Meanwhile, the Special Investigation Team (SIT) formed to probe this case has arrested three friends of the woman on charges of trying to extort Rs 5 crore from Chinmayanand. They have also been charged with criminal intimidation, causing the disappearance of evidence and sending offensive messages to Chinmayanand.


Who is Swami Chinmayanand?

Swami Chinmayanand was born as Krishna Pal Singh and hails from Gonda. He is post-graduate from Lucknow University. At the age of 24, he joined Mumukshu Ashram and became a disciple of Swami Dharmanand. He also had roles in Ram Mandir Andolan and Demolition of Babri Masjid. He is a three-time Member of Parliament on Bhartiya Janta Party ticket. He was also a Union Minister in Atal Bihari Vajpayee Govt.



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In common law, Writ is a formal written order issued by a body with administrative or judicial jurisdiction.

In India writs provides the citizen as well as person a right to directly approach the Court   in situations wherein their rights are infringed or are on the verge of infringement.

It should be taken into consideration that the concept of writ is alone wherein the High Courts enjoy more jurisdiction as compared to the Supreme Court.


Five Type of Writs:

There are five types of writs in the Indian Constitution stated in Article 32 for Supreme Court and Article 226 for High Court. They are

  1. Habeas Corpus
  2. Quo-Warranto
  3. Mandamus
  4. Prohibition
  5. Certiorari
  1. Habeas Corpus: (to have the body)

The first writ is of Habeas Corpus. It emanated from the 39th clause of Magna Carta, which was signed and authorized by King John in the year 1215. The term ‘Habeas Corpus’ is a Latin term which means ‘to have the body’. The main purpose of this writ was to provide security to a person who has been illegally detained. Within the terms of this writ unlawful or illegal detention shall take place if-

  • If the detention is not as per the law of the territory or if the procedures are not duly followed.
  • Laws of land are infringed while detaining a person.
  • It surpasses the authority which was entrusted by Legislature.

The Indian Constitution under Article 20, provides protection to a person in respect of conviction for offences and under Article 21 protects the personal life and liberty of a person. Whereas under Article 22, the Constitution provides protection against arrest and detention and it also lays the rights of detainee. Based on these articles the Court shall analyse the authenticity of the detention of a person.


Case law- Sheela Barse vs State of Maharashtra

  • Sheela Barse a journalist by profession had filed a writ petition on the pretext that she had interviewed 15 women prisoners in Bombay on 11/05/1982.
  • She stated that during the interview she found out that two prisoners were assaulted within the jail premises.
  • Based on her allegations the Court had ordered and directed Dr (Miss) A.R.Desai, Director of college of Social Work to investigate into the matter and submit a report.
  • The report submitted by Dr (Miss) A.R.Desai proved that the allegations were true.
  • Subsequently, the Court ordered for certain safety measures that had to be followed for protecting the women prisoners and also the officials responsible for the carelessness and inaccuracy were punished.


  1. Qua warranto: (by what authority)

The word ‘Qua warranto’ is derived from a Latin term which means ‘by what authority’. In simpler terms this writ questions the authority who lays a down a particular decision. In legal aspect this writ is issued to a person who holds a public office. The person who enjoys the position of a public officer is answerable to the Court for his/her acts. The public officer has to satisfy the Court that he/she is legally entitled to hold the office. This writ does not lay emphasis on the concept of ‘locus standi’ and any person can approach the Court under this writ. It is not a pre-condition the sufferer c an alone file this writ.

This writ can be filed under various circumstances such as:

  • test the validity of an election of a person in a university syndicate
  • test the validity of Nomination of members to a Legislative Council by Governor
  • to examine the appointment of Chief Minister, Chief Justice, Advocate and Attorney General, University Teachers etc.

Conditions for Issue of Quo Warranto

  • The offence must be substantive in nature.
  • The person under question must legally hold a public office which is established by or under Constitution.
  • There must be a contravention in constitution in appointing the person for that office.

Case law- Purushottam Lal vs State of Rajasthan 

  •  In this case this writ was filed the Rajasthan’s Chief Minister stating that he was not legally elected to the post and he was holding the post illegally.
  • Thus the office of the Chief Minister was in question with regards to its validity.
  • However, the petition was rejected in the Court on the grounds that, if the CM holds office without authority, then it is breach of constitutional provision.
  • The Court further stated that the office of the Chief Minister is created by the Constitutional Provision and based on this the member of assembly is not a purpose of office.
  • The Court was of the view that the objecting the election of the Chief Minister cannot be included in this writ and the same can be done by filing an election petition.
  • This decision clearly stated that if the person with no or improper qualification was appointed as a Chief Minister by the Governor under Article 164 of the Indian Constitution, the decision cannot be challenged.
  • Because the Governor enjoys discretionary powers under Article 361 and the appointed can be deserted by the High Court if it thinks fit.
  • In the case ‘Y.S.Raja Sekar Reddy vs Nara Chandra Babu Naidu’ a quo warranto cannot be issued for dismissing the Chief Minister of a state on the reason of non-performance of his constitutional duty.


  1. Mandamus- (We command)

Mandamus means ‘we command’. This writ is in the form of an order from the Supreme Court or High Court to the lower court i.e.

  • Lower or Subordinate courts
  • Tribunal.
  • Public Authority.

Under this writ the higher Judicial courts orders their subordinates to perform a public or a statutory duty.

This writ is more in the nature of a command which is issued to any Government, subordinate court or corporation or public authority in case there is any failure on their part to the work effectively and efficiently.



Limitations for Mandamus:

Supreme Court cannot issue writs to

  • President or State Governors
  • Chief Justice of High Courts
  • Against any private individual
  • Duties on voluntary interest
  • State government to appoint a commission for any enquiry in the state 
  • Delegated legislative to make further rules in statutory provisions
  • To enforce the payment of money of a person in a civil liability
  • Directing the government to make reservations (Article 16[4])

Case law- Tata Cellular vs UOI 

  • The Apex Court stated that the Judiciary cannot intervene in the Government’s freedom of contract, invitation of tenders and refusal of tenders.
  • It also held that the Courts are eligible to intervene if the conduct of the Government was induced by illegal, unreasonable or unfair activities.


  1. Certiorari – (To Be Certified):

The writ of Certiorari is issued by a Superior Court to its lower or inferior courts or to any other public authority. By virtue of this writ of the Superior Courts are entitled to receive the records of any proceeding for reviewing the same.

Generally, this writ is issued to revoke the order passed by the lower courts or other quasi-judicial bodies.

Conditions for Issue of Writ of Certiorari:

  • There must be a court, tribunal or an authorised person having a legal right to act judicially.
  • Such court, tribunal or officer must have acted or passed an order without jurisdiction or in excess of judicial authority.
  • The order in question was against the principle of Natural Justice.
  • The order contains an error of judgement.
  • The order is against the constitution or is in contravention with the fundamental rights.


  1. Prohibition- (to prohibit)

This writ is issued by the Superior Court to the Inferior Court with a view to disallow or forbid the orders that were passed by them. The major difference between the writ of certiorari and prohibition are as follows:

  • Certiorari – issued to quash a decision after completion of proceedings.
  • Prohibition – issued before the completion of proceedings.



The writ jurisdiction of the Indian Legal System is a blessing to its democracy. The writs not only allow the citizen to approach the Judiciary directly, but it also gives an opportunity to the persons as well under certain circumstances. It sort of helps the victim or persons acting on behalf of the victim to avail speedy recovery. Thus, it is necessary the concept of writs should be duly and diligently followed, so that the faith of people in its legal system prevails.


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Evidentiary value of extra judicial confession

The needs of extra judicial confession actually creep in when the urgency of the matter exceed fair judicial process. These are made by the party elsewhere then before a magistrate or in the court. The word used by the accused in such a confession weight the higher value that such exact words would be necessary to give the court an impression of what the true confession was. It can be made before a Magistrate who is not especially empowered to record confession u/s 164 CrPC or before a private individual. However unlike other form of confession extra judicial confession u/s 26 has its own limitations. Extra judicial confession made before persons with whom the accused had no relationship could not be relied upon. In Tarseeem Kumar v. Delhi Administration, 1995 the accused was acquitted on the ground that the extra judicial confession, as claimed, was made before stock witness who was casually knowing the accused. Such a extra judicial confession lacks credibility before the court. In state of Haryana v. Ved Prakash 1994 it was alleged that the accused made extra judicial confession to a Doctor and another person, both the strangers and the same was tape-recorded as if it was anticipated and the tape-recorder kept ready. Such a statement was not a confession in nature because of denoted influence and involuntariness of the accused to state such fact whether true or not. The nature of the confession is always voluntary where accuse submit himself before the fair people in just belief. Where extra judicial confession was made to a stranger and the excat words were not recorded and corpus delicit i.e, substance or foundation of an offence was not available, it was held that the confession could not be relied upon.

In Gura Singh v. State of Rajasthan 2001 the evidentiary value attached to the extra judicial confession was explained;

            “it is settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Further, relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the has again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by the way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be found on the evidence alone. In Kishore Chand v. State of H.P. this court held that an unambiguous extra judicial confession possess high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat, or promise envisaged u/s 24 of Evidence Act or was brought about in suspicious circumstances to circumvent section 25 and 26. The court is required to look into surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made the time and place of making it, the circumstances in which it was made have to be scrutinized.”

Thus, in examining the weight of evidentiary value of extra judicial confession it is necessary to check whether the accused was the free man while making such a statement which can in all the probabilities go against him and can criminalise him. 

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Rights of an Arrested Person

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.


4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.


6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.


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