Supreme Court says practice of Talaq-e-Hasan 'not so improper' as women also have an option

The Supreme Court on Tuesday said that the practice of Talaq-e-Hasan among Muslims for divorce is prima facie not improper, and it does not want the issue to become an agenda for any other reason.

A bench of Justices Sanjay Kishan Kaul and M M Sundresh orally said, "Prima facie this (Talaq-e-Hasan) is not so improper. Women also have an option... Khula is there."

In Talaq-e-Hasan, talaq is pronounced once a month by a Muslim man, over a period of three months. If cohabitation is not resumed during this period, divorce gets formalised after the third utterance in the third month. However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled. The first/second utterances of talaq are deemed invalid.

'Khula' is a procedure which allows a woman to give a divorce to husband in Islam, by returning the dower (mahr) or something else that she received from her husband or without returning anything, as per agreement by the spouses.

Hearing a plea challenging validity of Talaq-e-Hasan by Ghaziabad resident, Benazeer Heena, the bench said it does not agree with the petitioner.

Heena claimed to be a victim of "unilateral and extra judicial Talaq-e-Hasan".

"Prime facie, I don't agree with the petitioners and I don't want this to become an agenda for any other reason," Justice Kaul said as senior advocate Pinky Anand, appearing for the petitioner, submitted though the top court declared triple talaq unconstitutional, it left the issue of Talaq-e-Hasan undecided.

The bench also pointed out that women also have a similar option by way of 'Khula' and while courts also granted divorce by mutual consent in case of irretrievable breakdown of marriage.

"This is not triple talaq...If two people cannot live together, we are also granting divorce by irretrievable breakdown of marriage," the bench said.

The bench asked that the counsel if the petitioner was open to divorce by mutual consent, on the condition that mehar is taken care of.

On the counsel seeking time to take instructions, the top court fixed the matter for hearing on August 29.

In her plea, Heena said the practice wreaks havoc to lives of many women and their children, especially those belonging to the weaker economic sections of the society.

In her case, the petitioner contended on lodging of a complaint, the police and other authorities had told her that Talaq-e-Hasan is permitted under Sharia.

“The Muslim Personal Law (Shariat) Application Act, 1937, conveys a wrong impression that the law sanctions Talaq-E-Hasan and all other forms of unilateral extra-judicial talaq, which is grossly injurious to the fundamental rights of married Muslim women and offends Articles 14, 15, 21 and 25 of the Constitution and the international conventions on civil and human rights,” her plea said.

It further pointed out, many Islamic nations have restricted such a practice, while it continues to vex the Indian society in general and Muslim women like the petitioner in particular.