Should civilised society allow this? Supreme Court moots abrogating Talaq-e-Hasan

The Supreme Court on Wednesday indicated that it might consider striking down Talaq-e-Hasan, a practice by which a Muslim man can divorce his wife by saying the word "talaq" once a month for three months [Benazeer Heena v. Union of India & Ors.].

The Bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh also indicated that it may refer the matter to a 5-judge bench and 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 Court opined that since the practice affects society at large, the Court may have to step in to take remedial measures.

"Society at large is involved. Some remedial measures have to be taken. If there are gross discriminatory practices, then the court has to interfere," Justice Kant orally remarked.

The judge went on to ask how such a practice, which affects the dignity of women, can be allowed to continue in a civilised 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?" the judge asked.

The Court was hearing a Public Interest Litigation (PIL) petition filed by journalist Benazeer Heena in 2022 seeking a declaration that the practice is unconstitutional as it is irrational, arbitrary and violative of Articles 14, 15, 21 and 25 of the Constitution.

The PIL also sought guidelines on a gender and religion neutral procedure and grounds for divorce.

The petitioner's husband had allegedly divorced her by sending a Talaq-e-Hasan notice through a lawyer, after her family refused to pay dowry, even as her in-laws were harassing her for the same.

She highlighted several instances of being mistreated and beaten at the hands of the husband and his family and also stated that she had even submitted a complaint to the Delhi Commission for Women and lodged a First Information Report (FIR). However, the police allegedly told her that the practice is permissible under Sharia law.

Today, Senior Advocate MR Shamshad, appearing for the husband, told the Court that it is a well known practice in Islam to appoint a person to send a Talaq-e-Hasan notice. In this case, the husband appointed a lawyer.

However, Justice Kant questioned why the husband could not communicate directly with the petitioner.

"If talaq is to take place as per religious practice then the entire procedure has to be followed as it is prescribed... We will call (the husband) to Court," Justice Kant opined.

Counsel for Heena submitted that due to the manner in which her husband sent the talaq-e-Hasan notice, she has been unable to prove that she is divorced even though her husband has remarried.

"The problem started with the schools where I wanted to get my child admitted. Everywhere I said I was a divorcee, my papers were not accepted. Admission was rejected. I told the father has moved on, married again. I don’t know the technicalities," the counsel submitted.

The Court directed the counsel to submit an application with all the details and directions required and decided to consider the matter next Wednesday, The Court also directed the husband to follow the prescribed practice for divorce and asked him to be present before the Court for the next hearing.

Justice Kant also observed that while Heena, being a journalist, has the ability to move the top court, many women from less privileged backgrounds may be languishing in silence.

"Today we have a journalist before us. What about those unheard voices living in remote areas?," he remarked.

The petition moved by Heena cited the Supreme Court's decision in Prakash and Others v. Phulavati & Ors to argue that marriage and inheritance laws are not a part of personal codes and have to be updated with time. Therefore, a PIL challenging a practice under personal laws towards securing the welfare of Muslim women is maintainable, it is argued.

Terming the practice as "Unilateral Extra-Judicial Talaq", the plea stated that banning it is the need of the hour, as it is not harmonious with human rights and equality and is not necessary in the Islamic faith. It was contended that the practice is misused and since only men can exercise the same, it is discriminatory as well.

The freedom of conscience, profession, practice and propagation of religion as guaranteed by Article 25, is not absolute, the petitioner further argued.

Interestingly, in August 2022, a different Bench hearing this matter had opined that the practice of Talaq-e-Hasan is not prima facie improper. A Bench of Justices Sanjay Kishan Kaul and MM Sundresh also said that the case pending before the Court challenging the practice should not be used to further any agenda.