Reconciling Religion: Lessons Learned from the Triple Talaq Case for Comparative Constitutional Governance

The recent case of Shayara Bano v Union of India (“Shayara Bano”) heard before the Supreme Court of India provide helpful guidance for how a secular democratic regime with a multiplicity of religious, ethnic, and cultural communities can manage constitutional governance with an increasing number of seemingly irreconcilable tensions. Pluralist societies such as Canada and the United States grapple with a variety of delicate balancing acts: in such instance, the need to reconcile accommodation for religious and cultural minorities with the protection of gender rights on the other.

In the Shayara Bano decision released on 22 August 2017, the Supreme Court of India in a 3-2 majority ordered the practice of talaq-e-biddat or triple talaq to be set aside, a form of talaq divorce practiced by the 90% or so Hanafi School of Sunni Muslims in India though considered sinful. Simply by repeating the words talaq, talaq, talaq, either orally or even through text messaging, the husband can divorce his wife instantaneously and irrevocably. A 2015 national survey showed the prevalence of insufficient maintenance following triple talaq divorce: “roughly 1 in 11 Muslim women were survivors of triple talaq, the vast majority receiving no alimony or compensation.”

Shayara Bano v Union of India

Writing for the majority, Justices Rohinton Fali Nariman and Uday Umesh Lalit held that although the Muslim Personal Law (Shariat) Application Act, 1937 (“1937 Act”) regulated triple talaq, the practice was unconstitutional owing to its manifestly arbitrary nature and violation of the right to equality under Article 14 of the Constitution of India (the “Constitution”) ...

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