‘Should civilised society allow this kind of practice?’ SC questions talaq-e-hasan

Eight years after declaring talaq-e-biddat (instant triple talaq) unconstitutional, the Supreme Court on Wednesday questioned the Islamic practice of talaq-e-hasan—another form of triple talaq in which a Muslim man can divorce his wife by pronouncing the word ‘talaq’ once a month for three consecutive months.

”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 the dignity of a woman can be upheld? Should a civilised society allow this kind of practice?” a Bench ked by CJI-designate Justice Surya Kant asked.

The Bench, which also included Justice Ujjal Bhuyan and Justice N Kotiswar Singh, hinted at referring petitions against talaq-e-hasan to a Constitution Bench.

”Once you (petitioners’ advocates) give us a brief note, we will consider the desirability of referring it to a five-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 Bench said, posting the matter for further hearing on November 26. “It’s Constitution Day and therefore we must do something”, Justice Kant 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,” Justice Kant said, about a petition filed by journalist Benazeer Heena in 2022 seeking to declare the practice of talaq-e-hasan as unconstitutional for being irrational, arbitrary and violative of Articles 14, 15, 21 and 25 of the Constitution.

One of the petitioners, whose husband had allegedly divorced her by sending a Talaq-e-Hasan notice through a lawyer after her family refused to pay dowry, has also sought guidelines on gender and religion neutral procedure and grounds for divorce. She described it as a “unilateral extra-judicial talaq”.

”Today we have a journalist today before us. What about those unheard voices living in remote areas?” the CJI-designate wondered.

Eight years ago, the court had outlawed talaq-e-biddat, calling the practice “bad in law.”  By a majority of 3:2, a five-judge Constitution Bench of the Supreme Court had on August 22, 2017, declared the age-old controversial practice of instant triple talaq (talaq-e-biddat) unconstitutional, terming it arbitrary and violative of right to equality of Muslim women.

The petitioner’s counsel Ashwini K Upadhyay submitted that the manner in which her husband sent the talaq-e-Hasan notice through a lawyer, she was unable to prove that she was divorced even though her husband got remarried.

”In Shayara Bano (2017 triple talaq case), five types of Muslim divorce were challenged. I have (challenged) the sixth one today. The court only dealt with talaq-e-biddat then. Why should I be discriminated against? Why should I not have the same rights as other daughters? If I have sisters married in other religions, why should all sisters not have common rights… common maintenance?” Upadhyay submitted.

As Upadhyay said Heena faced problems in securing school admission for her child, the court sought to know which school denied admission to her child.

The Bench wondered 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,” it said.

On behalf of the husband, senior counsel MR Shamshad, however, said it’s a well-known practice in Islam to appoint a person to send a Talaq-e-Hasan notice.

Earlier, the top court had asked the National Commission for Women (NCW), the National Human Rights Commission (NHRC) and the National Commission for Protection of Child Rights (NCPCR) to respond to the petitions against talaq-e-hasan.