The Supreme Court on August 16 said it was of the prima facie view that the practice of divorce in Muslims through 'Talaq-e-Hasan' was “not so improper” and it was not akin to the triple talaq.
While a man can divorce his wife through ‘talaq’ in the Islam, a woman has the option to part ways with her husband through ‘khula.’
A Bench of the top court comprising Justices S.K. Kaul and M.M. Sundresh was hearing a plea by a woman petitioner challenging the constitutionality of divorce through Talaq-e-Hasan and all other forms of "unilateral extra-judicial talaq” on the ground that they are discriminatory against women.
In 2019, the government banned instant triple talaq, or Talaq-e-Biddat.
In the hearing, senior advocate Pinky Anand pointed out that the Supreme Court had declared triple talaq unconstitutional, but left the issue of Talaq-e-Hasan undecided.
What is Talaq-e-Hasan?
In Islam, 'Talaq-e-Hasan is an extra-judicial form of divorce that can be practised by men. Under Muslim personal laws, this form of divorce is revocable. A traditional form of divorce, 'Talaq-e-Hasan is considered to be approved by Prophet Mohammad and is valid as per all schools of Muslim law.
To practice 'Talaq-e-Hasan, a man needs to pronounce talaq on his wife three turns at intervals of one month. The period of the gap between the three consecutive talaqs is called the period of abstinence or ‘iddat’ and its duration is 90 days. The divorce is assumed to be revoked if the couple begins to cohabit or be intimate during the period of abstinence.
How is it different from triple talaq?
Triple talaq or Talaq-e-Biddat was banned by the government in 2019. In this, a man can divorce his wife by pronouncing "talaq" thrice in one go. The divorce is instant and irrevocable. This is different from 'Talaq-e-Hasan as it does not have any waiting period and irrevocably terminates the marriage.
What does the Supreme Court say?
The petitioner, Benazeer Heena, filed a plea with the top court alleging that her husband practiced Talaq-e-Hasan to divorce her through a lawyer after her family refused to give dowry. She contended that all extra-judicial forms of talaq were “arbitrary and irrational” and their practice was “neither harmonious with the modern principles of human rights, nor an integral part of Islamic faith.”
She urged the court to declare it void and unconstitutional.
To this, the Supreme Court said this was not the same as triple talaq and “prima facie “not so improper” as women have the option to practice khula, unlike Talaq-e-Biddat, where divorce is instant.
According to the Bench, if a couple is unable to live together, the court can grant divorce on the ground of irretrievable breakdown under Article 142 of the Constitution.
The court also asked if the petitioner was open to divorce by mutual consent provided ‘meher’ (bride price) was taken care of.
The apex court also told the petitioner that the dissolution of marriage is possible through 'mubarat' (divorce initiated by the wife) without the intervention of the court. It will now hear the matter on August 29.
