Supreme Court mulls abrogating Talaq-e-Hasan: Know about the Muslim divorce practice

The Supreme Court bench was informed that the petitioner’s husband had used a lawyer to send the Talaq-e-Hasan notice, after her family allegedly refused dowry demands.

During a hearing on a 2022 Public Interest Litigation (PIL) filed by journalist Benazeer Heena, the Supreme Court questioned whether a practice such as Talaq-e-Hasan could continue to exist in what it called a “civilised society.”

The matter, which came up before a Bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh, prompted the Court to signal that it might send the issue to a Constitution Bench of five judges. “Once you give us a brief note we will consider the desirability of referring to a 5 judge bench,” the Bench told the parties, asking them to outline the substantial questions for adjudication, according to Bar and Bench.

The judges remarked that the practice has wide-reaching consequences and may demand judicial intervention. Justice Kant, who will assume office as the Chief Justice of India after Justice BR Gavai on November 24, reportedly 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.”

He went on to ask how such a system could be carried forward into the present day. “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?” he asked.

What is Talaq-e-Hasan?

Talaq-e-Hasan allows a Muslim husband to pronounce “talaq” once a month, over three months, to obtain a divorce. In Heena’s petition, she contended that this mode of dissolving a marriage is arbitrary, discriminatory, and inconsistent with Articles 14, 15, 21 and 25 of the Constitution.

The plea termed it “unilateral extra-judicial talaq” and argued that it is neither required by Islamic faith nor compatible with principles of equality or human rights.

Her petition further relied on the Supreme Court’s ruling in Prakash and Others v. Phulavati & Ors to assert that personal laws relating to marriage and inheritance must evolve with time, and that a PIL calling for reforms in Muslim women’s rights is maintainable.

The plea also stated that the freedom of religion guaranteed under Article 25 cannot shield practices that violate fundamental rights.

The Bench was informed that the petitioner’s husband had used a lawyer to send the Talaq-e-Hasan notice, after her family allegedly refused dowry demands, according to the report.

Heena said she had faced harassment and assault by her husband and in-laws and had approached both the Delhi Commission for Women and the police, only to be told that the divorce procedure was permissible under Sharia law.

Senior Advocate MR Shamshad, representing the husband, maintained before the Court that appointing someone to issue the Talaq-e-Hasan notice was accepted in Islamic practice.

Justice Kant questioned this approach, stating, “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.” The judges also asked why the husband could not directly communicate his intention.

Heena’s counsel added that because of the manner in which the notice was issued, her client had no way of proving her marital status even though the husband had remarried.

“Everywhere I said I was a divorcee, my papers were not accepted,” the lawyer reportedly told the Court while explaining how school admissions for the child were rejected.

The Court asked the petitioner’s side to file an application detailing the directions sought and ordered the husband to appear at the next hearing, scheduled for the following Wednesday.

Justice Kant has been quoted to say, “Today we have a journalist before us. What about those unheard voices living in remote areas?”

A different Bench of Justices Sanjay Kishan Kaul and MM Sundresh had earlier observed in August 2022 that the practice was not prima facie improper and cautioned against using the litigation to push any agenda. Heena was represented in the current hearing by advocates Syed Rizwan Ahmed, Pulkit Agarwal, and Sidharth Jain.