INTRODUCTION
Muslim weddings are regarded as contracts, and where there is a contract, there is also the possibility of its termination. Divorce is one such Islamic-law-governed option, as defined by the Shariat Application Act of 1937. Islam has always recognised both judicial and extrajudicial divorce procedures, categorising them as Talaq-e-Ahsan, Talaq-e-Hasan, and Talaq-e-Biddat, which are the simplest types of divorces initiated by the husband, while “khula” is a divorce initiated by the wife. Furthermore, it recognised the third type of divorce known as Mubarak,[1] which can be initiated by Both, Talaq-e-Ahsan and Talaq-e-Hasan are seen as more amenable divorce options because they are mentioned in the Holy Quran.
Recently, PIL was filed in the Supreme Court on behalf of a female journalist, Benazeer Heena, of Ghaziabad, who claimed to be a victim of a “unilateral extra-judicial form of divorce known as Talaq-e-Hasan.” Advocate-on-record Ashwani Kumar Dubey filed the petition, asking the court to declare the practice void and unconstitutional. The PIL also claims that such a divorce is arbitrary and unlawfully unreasonable against women and that it violates fundamental rights guaranteed by Articles 14, 15, 21, and 25 of the Indian Constitution. Furthermore, the PIL also seeks gender and religiously neutral divorce methods.
WHAT IS TALAQ-E-HASAN?
Talaq-e-Hasan is a type of extra-judicial divorce practised by Muslims in which a man can divorce his wife by saying the word talaq once a month for three months, implying that a Muslim man can say the word talaq three times in three months and the marriage will be ended. Three months is considered a reconciliation period, and if the parties do not resume cohabitation after the third utterance, it becomes a ground for divorce.[2] However, if cohabitation continues after the first and second pronouncements, it is assumed that both parties have reconciled, and the divorce becomes null and void. Furthermore, no divorce can be filed if the woman is in her menstrual cycle or is pregnant. Unlike Talaq-e-Biddat (Triple Talaq), where a man can divorce his wife immediately by saying the word “Talaq” three times, Talaq-e-Hasan is considered a more logical method. Furthermore, in triple talaq, there is no reconciliation period and the marriage ends instantly. In 2017, Shayra Bano v. Union of India[3] ruled the practice of triple talaq divorce invalid and unconstitutional in a majority decision of the Supreme Court. The verdict was rendered by a court of five judges, each of a different faith. The majority of the verdict declared triple talaq against the basic principles of the Quran.
RECENT CHALLENGE
Recently, Advocate Ashwani Kumar Dubey filed a petition on behalf of Benazeer Heena, challenging the validity of Talaq-e-Hasan. The petitioner claimed that her husband divorced her through Talaq-e-Hasan via a notification through her lawyer; the petition states that she was harassed by her husband and in-laws for failing to provide her dowry, and she was also injured by her abusive husband. The petitioner also stated that the police authorities refused to enter the FIR and told her that Talaq-e-Hasan is a valid practice allowed under Sharia law.
Under the Muslim Law Application Act of 1937, the law provides an improper remedy for divorce that can only be obtained by men. The punishments in Talaq-e-Hasan are extrajudicial, which makes them disadvantageous for married women. The plea alleges that the law further violates Articles 14[4], 15[5], 21[6] and 25[7]. The plea also argued that the practice is discriminatory and can harm many women, including their children, so this method of divorce will mainly affect disadvantaged groups in society. Furthermore, the petitioner also mentioned that this practice has already been banned in many Islamic countries, but many women and children still suffer from this scourge. The petitioner also demanded that Section 2 of the Muslim Personal Law Application Act 1937[8] be void and unconstitutional as it fails to protect the rights of women and further violates the provisions set forth in the Constitution of India. The lawsuit is currently pending in the Supreme Court and is scheduled for rehearing.
CONSTITUTIONAL VALIDITY
Article 25[9] mentioned in the Indian Constitution guarantees every citizen the right to religion without any interference. The Muslim Personal Law Application Act (Shariat) 1937, which was enacted to allow Muslims to be governed according to their religious practices, draws its strength from the provision. Shariat law allows husband and wife to divorce, where men can practice it through Talaq-e-Hasan and women can practice it through khula; this right is recognized under Section 2[10] of the Muslim Law Application Act, 1937. The divorce procedure for women was recognized in 1972 in KC Moyin v Nafeesa[11]. The Divisional Bench of the Kerala High Court, while studying the writings of religious scholars and carefully analyzing the text of the Quran, observed that women have the absolute right to end the marriage by invoking the khula. It was also seen as an unconditional right of the wife, not requiring her husband’s consent. Observing the legal discussion above, it becomes very difficult to determine the validity of the disputed divorce in the Supreme Court and how it violates Articles 14[12] and 15[13]. Now the question arises: is the plaintiff not asking for an unconstitutional legal remedy? Wouldn’t it be unconstitutional to deny only men the possibility of an extrajudicial divorce? Declaring Talaq-e-Hasan unconstitutional is seen as discrimination against men and a violation of Articles 14, 21[14] and 25[15], as only women could seek an extra-judicial form of divorce, leaving men vulnerable.
Supreme Court attorney Firdous Qutb Wani, in his conversation with the wire[16], said: “The concept of divorce in Islam was introduced to give men and women the opportunity to end their marriage in case something goes wrong. Talaq -e-Hasan mentioned in the Quran is a form of divorce method granted to men and there is nothing wrong with this because women have also been granted the right to divorce through the initiation of a process called khula, Therefore essential religious practice and cannot be declared unconstitutional”.
CONCLUSION
Thus, it becomes very clear that the contentions raised in the petition challenging Talaq-e-Hasan are themselves unreasonably vague and declaring it unconstitutional will not only affect Muslim men but will also strike down the mechanism for extra-judicial divorce. The plea is still pending in the Supreme Court and listed for further hearing on 18th August in the Delhi High Court. The constitutionality of Talaq-e-Hasan is still in question and what the legal system will adopt is very unpredictable to say.
Author(s) Name: Adnan Ahmad (Integral University, Lucknow)
References:
[1] Mubarak Ansari, ‘Modes of divorce among Muslims’ (The Bridge Chronicles, 22 August 2017)
<https://www.thebridgechronicle.com/pune > accessed 10 August 2022
[2] Neha Singh, ‘All you need to know about talaq given in over 3 months’ (News Room Post, 9 May 2022) <https://newsroompost.com/india/what-is-talaq-e-hasan-all-you-need-to-know-about> accessed 11 August 2022
[3] Shayra Bano v Union of India (2017) AIR 9 SCC 1 (SC)
[4] Constitution of India 1950, art 14
[5] Constitution of India 1950, art 15
[6] Constitution of India 1950, art 21
[7] Constitution of India 1950, art 25
[8] Muslim Personal Law Application Act 1937, s 2
[9] Constitution of India 1950, art 25
[10] Muslim Personal Law Application Act 1937, s 2
[11]Sahas Arora & Gunjan Suyal, ‘In defence of Talaq-e-Hasan’ (The Leaflet , 20 July 2022)
<https://theleaflet.in/in-defence-of-talaq-e-hasan/> accessed 13 August 2022
[12] Constitution of India 1950, art 14
[13] Constitution of India 1950, art 15
[14] Constitution of India 1950, art 21
[15] Constitution of India 1950, art 25
[16] Zeb Hasan, ‘The constitutional validity of Talaq-e-Hasan’ (The wire , 07 May 2022)
<https://thewire.in/law/explainer-the-constitutional-validity-of-talaq-e-hasan> accessed 14 August 2022
