The Supreme Court on Wednesday expressed strong reservations regarding the practice of 'Talaq-e-Hasan,' a form of divorce in Islamic law, and indicated that a five-judge bench might be constituted to assess its validity. A bench comprising Justices Surya Kant, Ujjal Bhuyan, and N Kotiswar Singh voiced concerns about the existing lacunae within the practice and questioned the propriety of husbands' lawyers issuing Talaq notices to wives. The court noted that this could enable husbands to later deny issuing Talaq and accuse wives of polyandry should they remarry.
Talaq-e-Hasan is a process where a husband can divorce his wife by pronouncing "talaq" once a month for three consecutive months. This contrasts with the instantaneous triple talaq (talaq-e-biddat), which was declared unconstitutional by the Supreme Court in 2017.
During the hearing, the bench emphasized the need to consider the broader implications of the matter, extending beyond the immediate circumstances of the petitioners. Justice Kant remarked on the importance of ensuring access to justice for all, including those who may be illiterate or living in remote areas and facing similar hardships. The court questioned how such a practice, which affects the dignity of women, can be allowed to continue in a civilized society. "What kind of thing is this? How are you promoting this in 2025? Whatever best religious practice we follow, is this what you allow? Is this how a dignity of a woman be upheld? Should a civilised society allow this kind of practice?" Justice Kant asked.
The court has sought input from involved parties regarding potential judicial intervention. It suggested that instead of striking down the remaining forms of Muslim divorce, like Talaq-e-Hasan, these practices may be "regulated". The court has asked the parties before it to submit notes with the broad questions which may arise for consideration. "Once you give us a brief note we will consider the desirability of referring to a 5 judge 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 Court said.
The case originated from a Public Interest Litigation (PIL) filed by journalist Benazeer Heena in 2022, who challenged the constitutionality of Talaq-e-Hasan, arguing that it is irrational, arbitrary, and violates Articles 14, 15, 21, and 25 of the Constitution. Heena's petition also seeks guidelines for a gender and religion-neutral divorce procedure. She claimed that her husband sent her the first notice of talaq through a speed post on April 19, and subsequent notices followed in the months after. Her counsel argued that the manner in which the talaq-e-Hasan notice was served puts her at risk of being accused of polyandry, especially since the notice lacked her husband's signature and was sent by his advocate.
The Court also allowed two intervention applications filed in the matter by the All India Muslim Personal Law Board and Samasth Kerala and the Samastha Kerala Jem-iyyathul Ulama.
Senior Advocate MR Shamshad, representing the husband, argued that it is a common practice in Islam to appoint someone to deliver a Talaq-e-Hasan notice. However, Justice Kant questioned why the husband could not communicate directly with his wife. The Bench directed the husband to follow the prescribed practice for divorce and ordered him to be physically present before the Court for the next hearing, scheduled for next Wednesday.
The Supreme Court’s observations have sparked a debate on the validity and fairness of 'Talaq-e-Hasan'. While a prior bench in August 2022 had considered the practice "prima facie not so improper", the current bench's remarks suggest a potential shift in perspective, emphasizing the need to protect the dignity and rights of women within the framework of divorce laws.
