What is the Talaq-e-Hasan divorce practice? Will Supreme Court strike it down?

The Supreme Court has questioned the practice of ‘Talaq-e-Hasan’, a form of divorce among a section of Muslims. The apex court on Wednesday (November 19) also flagged the issue of husbands’ lawyers sending talaq (divorce) notices to wives.

“Should a civilised society allow this kind of practice?” the court asked. It was hearing a Public Interest Litigation (PIL) by journalist Benazeer Heena, who challenged the constitutional validity of such a divorce.

Let’s take a closer look.

What is Talaq-e-Hasan?

Talaq-e-Hasan is a form of divorce in Muslim law that allows a man to divorce his wife by pronouncing ‘talaq’ once a month over a period of three months.

The husband has to ensure that the wife is not menstruating when he pronounces talaq. After the first pronouncement, the man has to wait until the next menstrual cycle of his wife.

These three months are also a period of abstinence. However, if there is reconciliation between the couple during the 90 days, the divorce process is revoked.

In case the couple do not reconcile and cohabitation has not resumed, the divorce gets formalised after the third utterance of the word talaq in the third month.

The Talaq-e-Hasan case before SC

A bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh is hearing pleas challenging Talaq-e-Hasan.

In 2017, the apex court had declared triple talaq or talaq-e-biddat, under which divorce was granted instantly after a husband uttered the word talaq thrice in a row, as unconstitutional.

The lead petition against Talaq-e-Hasan, filed by Heena, claimed that her husband sent her the first notice of talaq through a speed post on April 19. The second and third notices were delivered in the subsequent months, as per LiveLaw.

The journalist argued that this divorce practice is irrational, arbitrary and violates Articles 14, 15, 21 and 25 of the Constitution.

Heena told the apex court about her ordeal since her husband sent a talaq notice through his advocate. Her counsel said she risks being accused of polyandry as the talaq notice did not carry the husband’s signature and was sent by his advocate.

The woman said that, as she has not been able to prove she is divorced, her four-year-old child has been denied admission to schools and she is also struggling to get her passport.

According to her counsel, Heena’s husband only gave her a lump sum amount of Rs 17,000. The journalist also said that her husband has remarried and moved on, while she is facing difficulty in proving her divorce.

“She will indulge herself in polyandry because of her husband. In the 11-page talaq notice, sign of husband is missing. Talaq pronounced by husband’s advocate!”, the counsel said.

To this, the husband’s lawyer told the apex court that it is common in Islam for a talaq notice to be served by a husband’s advocate.

Justice Kant asked, surprisingly, “Can this be a practice? How these new innovative ideas are being invented? Assuming whatever religious practices are there, at least that should be performed by the person with whom the relationship is there.”

Senior Advocate MR Shamshad, appearing for the husband, asserted that Muslim law allows a husband to authorise someone else to issue a talaq notice to his wife on his behalf, reported LiveLaw.

The bench questioned: “What prevents the husband to directly write communication to her? He has such ego that even for divorce he cannot speak to her? How are you promoting this kind of thing in modern society? These are the kind of things you will allow? It is [about] dignity of woman. Now advocate will start granting divorce? Tomorrow what will happen if a client disowns the advocate?”

The court also praised the woman for fighting her case, expressing concern about the less privileged.

“We salute this woman who has chosen to fight for her right. But there may be a poor woman, who does not know…does not have resources…she remarries…earlier husband can come and say you are indulging in [polyandry]. Should a civilised society allow this kind of practice?”

The top court told the husband’s advocate to call his client on the next date of hearing, saying, “If Talaq is to take place as per religious practice, then the entire procedure has to be followed as it is prescribed.”

Will SC strike down Talaq-e-Hasan?

The Supreme Court has indicated it may refer the challenge to the validity of Talaq-e-Hasan to a larger five-judge constitution bench.

It asked parties to submit notes on the types of Talaq allowed under Islamic practices. The bench said it was not the question of striking down a prevalent religious practice but an issue that has to be regulated according to the constitutional ethos, reported PTI. 

“Once you give us a brief note we will consider the desirability of referring to a five-judge constitution bench. Give us broadly the questions that may arise. Then we will see how those are predominantly legal in nature that the court must resolve,” the bench said.

It also observed that the practice affects society at large. Justice Kant said, “Society at large is involved. Some remedial measures have to be taken. If there are gross discriminatory practices, then the court has to interfere.”

The bench asked lawyers appearing for different parties to submit the issues to be adjudicated by the court and as well as specify the extent to which the court can interfere in these practices.

“Also [assist] on why the Court should not interfere where such kind of very gross, discriminatory and grossly exploitative practices are suppose there, then why not the Courts should interfere in this kind of affair also? And then what should be the norms which can be laid down through judicial platform?”, Justice Kant was quoted as saying by LiveLaw. 

The court also allowed the application by All India Muslim Personnel Law Board and Samastha Kerala Jamiyyathul Ulama to intervene in the matter and sought their submissions.

The top court had earlier sought the opinions of the National Commission for Women (NCW), National Human Rights Commission (NHRC) and National Commission for Protection of Child Rights (NCPCR) on the issues.

The court said it will next hear the matter on November 26. “It’s Constitution Day and therefore we must do something”, Justice Kant said.

With inputs from agencies