JAGDISH SINGH KHEHAR,CJI. - (1.) The petitioner's marital discord, and the petitioner's prayers: JUDGEMENT_39_LAWS(SC)8_2017.html The petitioner-Shayara Bano, has approached this Court, for assailing the divorce pronounced by her husband - Rizwan Ahmad on 10.10.2015, wherein he affirmed "...in the presence of witnesses saying that I gave 'talak, talak, talak', hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. From today I am 'haraam', and I have become 'naamharram'. In future you are free for using your life ...". The aforesaid divorce was pronounced before Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) - the two witnesses. The petitioner has sought a declaration, that the 'talaq-ebiddat' pronounced by her husband on 10.10.2015 be declared as void ab initio. It is also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared unconstitutional. During the course of hearing, it was submitted, that the 'talaq-e-biddat' (-triple talaq), pronounced by her husband is not valid, as it is not a part of 'Shariat' (Muslim 'personal law'). It is also the petitioner's case, that divorce of the instant nature, cannot be treated as "rule of decision" under the Shariat Act. It was also submitted, that the practice of 'talaq-e-biddat' is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution. It is also the petitioner's case, that the practice of 'talaq-e-biddat' cannot be protected under the rights granted to religious denominations (-or any sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was submitted, that the practice of 'talaq-e-biddat' is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of 'talaq-ebiddat', and as such, the same cannot be considered sacrosanctal to the tenets of the Muslim religion.
(2.) The counter affidavit filed by respondent no.5 - the petitioner's husband - Rizwan Ahmad, discloses, that the 'nikah' (marriage) between the petitioner and the respondent was solemnized on 11.04.2001, as per 'Shariat', at Allahabad. It was submitted, that the petitioner - Shayara Bano, performed her matrimonial duties intermittently, coming and leaving the matrimonial home from time to time. The matrimonial relationship between the parties resulted in the births of two children, a son - Mohammed Irfan (presently about 13 years old) studying in the 7th standard, and a daughter - Umaira Naaz (presently about 11 years old) studying in the 4th standard, both at Allahabad.
(3.) It is the case of the respondent-husband, that the petitioner-wife, left her matrimonial home on 9.4.2015 in the company of her father - Iqbal Ahmad and maternal uncle - Raees Ahmed, as well as children - Mohammed Irfan and Umaira Naaz, to live in her parental home. The respondent claims, that he continued to visit the petitioner, for giving her maintenance, and for enquiring about her well being. When the husband met the wife at her parental home in May and June 2015, she refused to accompany him, and therefore, refused to return to the matrimonial home. On 03.07.2015, Rizwan Ahmad, asked the father of Shayara Bano to send her back to her matrimonial home. He was informed by her father, after a few days, that the petitioner was not inclined to live with the respondent.;