While responding to petitions challenging the constitutional validity of talaq-e-hasan, the Supreme Court on August 29 impleaded the husbands of two women, Benazeer Heena and Nazreen Nisha, who claimed to be victims of the form of divorce, and sought their response on the plea. The Court said that the immediate requirement was to provide relief to the women before it takes a call on the constitutional validity of talaq-e-hasan.
The practice of talaq-e-hasan permits a Muslim man to divorce his wife by saying the word talaq once a month for three consecutive months. The Court will now hear the matter again on October 11.
Earlier, on August 16, the Court, while hearing a petition filed by Heena, had remarked that the practice of talaq-e-hasan among Muslims is not prima facie improper. The Division Bench of Justice SK Kaul and Justice MM Sundresh had said that the case is currently pending before the Court and thus challenging the practice should not be used to further any agenda.
Justice Kaul had observed: “Prima facie this (talaq-e-hasan) is not so improper. Women also have an option. Khula is there. Prima facie, I don’t agree with petitioners. Let us see. I don’t want this to become an agenda for any other reason.” The bench also remarked that courts also grant divorce by mutual consent in case of irretrievable breakdown of marriage.
“This is not triple talaq. You (women) also have the option of khula. If two people cannot live together, we are also granting divorce by irretrievable breakdown of marriage. Are you open to divorce by mutual consent if mehar (the amount to be paid by the groom to the bride at the time of marriage) is taken care of?” the bench asked the petitioner. The bench also inquired if the petitioner would be open to divorce on the terms of payment made over and above mehar. The top court asked the counsel for the petitioner to take instructions in this regard and posted the case for further consideration on August 29.
The petition filed by Heena sought to declare talaq-e-hasan as unconstitutional, irrational, arbitrary and violative of Articles 14, 15, 21 and 25 of the Constitution. The petitioner submitted in her plea that her husband had allegedly divorced her by sending a talaq-e-hasan notice through a lawyer on April 19 after her family refused to pay dowry, She further complained of being harassed by her in-laws.
The plea asked for guidelines on a gender and religion neutral procedure for divorce. It termed the practice as “unilateral extra-judicial talaq” and said that banning was the need of the hour. It also said that the practice was not necessarily a part of the Islamic faith and was being misused. It contended that the practice was discriminatory since only men could exercise the same.
The woman claimed in her plea that she got married to a man in September 2020. She alleged that her husband’s family compelled her mother to organise a lavish marriage ceremony and demanded dowry. When her family refused to fulfil the unjustified demands of cash and expensive gifts, she was tortured physically and mentally due to which she filed a domestic violence complaint with the Delhi Commission for Women.
The petition said that her husband subsequently preferred the route of talaq-e-hasan and gave her the first notice for the same with a view to compelling her to withdraw all legal complaints against him and his family members. The plea called the practice an abominable one when seen in the light of the progressive times of the 21st century.
The petition further pointed out that since the Supreme Court had already declared triple talaq as illegal in the case of Shayara Bano, forms of “unilateral extra-judicial talaq” should not exist. Therefore, the petitioner said that talaq-e-hasan is not only arbitrary, illegal, baseless and an abuse of law, but also goes against Articles 14, 15, 21, 25 of the Constitution and the United Nations Conventions.
The petition sought declaration of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as void and unconstitutional as it validated the practice of “talaq-e-hasan and other forms of unilateral extra-judicial talaq”.
The petition also challenged the Dissolution of Muslim Marriages Act, 1939, and sought directions to the centre to frame guidelines for “Gender Neutral Religion Neutral Uniform Grounds of Divorce & Uniform Procedure of Divorce for all citizens”.
According to the advocate handling her case, such practices wreak havoc on the lives of many women who are still unaware of their rights and legal remedies and cannot even think of approaching the court. They have no recourse, but to accept it as their fate. The plea said that the practice of talaq-e-hasan and other forms of unilateral extrajudicial talaq are not in accordance with modern human rights and gender equality principles. It also drew the Court’s attention to disparity as Muslim women cannot perform talaq-e-hasan or other forms of unilateral extra-judicial talaq, whereas Muslim men can, and such discrimination and inequality, hoarsely expressed in the form of polygamy, is abhorrent.
The plea talked about imams, maulvis and others who propagate support for and authorize talaq-e-hasan and other forms of unilateral extra-judicial talaq. It alleged that they are grossly abusing their position, influence and power by subjecting Muslim women to such heinous practice that treats them as chattel, thereby violating their fundamental rights guaranteed by Articles 14, 15, 21, and 25 of the Constitution. The Muslim personal law seeks to recognize and validate talaq-e-hasan and other forms of unilateral extra-judicial talaq, the petition added.
The plea also stated that the Dissolution of Muslim Marriages Act, 1939, fails to secure protection for Indian Muslim women from talaq-e-hasan and all other forms of unilateral extra-judicial talaq as compared to women from other communities. It said about the failure of the legislature in protecting the dignity and equality of women in general, and Muslim women in particular, when it comes to marriage, divorce, and succession.
“In light of changes in laws in various Islamic countries that either restrict or prohibit extra-judicial talaq, as well as the development of international laws, the Supreme Court is the only hope not only for Muslim women, but also for the Muslim community as a whole, which has suffered as a result of personal laws that violate the fundamental rights guaranteed by the Constitution,” the plea stated.
Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation), khul (mutual divorce), judicial divorce and oaths. The theory and practice of divorce in the Islamic world have varied according to time and place.
Talaq is considered in Islam to be a reprehensible means of divorce. The initial declaration of talaq is a revocable repudiation (ṭalāq rajʿah) which does not terminate the marriage. The husband can revoke the repudiation at any time during the waiting period which lasts three full menstrual cycles. The waiting period is intended to give the couple an opportunity for reconciliation and is also a meant to ensure that the wife is not pregnant. Resumption of sexual relations automatically retracts the repudiation. The wife retains all her rights during the waiting period. The divorce becomes final when the waiting period expires.
Talaq types can be classified into talaq al-sunnah, which is thought to be in accordance with Prophet Muhammad’s teachings, and talaq al-bid’ah, which is viewed as a bid’ah (innovation) deviations from it. Talaq al-sunnah is further subdivided into talaq al-ahsan, which is the least disapproved form of talaq, and talaq al-hasan. The talaq al-hasan involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period. The talaq al-hasan divorce involves three pronouncements made during the wife’s state of ritual purity with menstrual periods intervening between them, and no intercourse having taken place during that time.
—By Shivam Sharma and India Legal Bureau