Eight years after the Supreme Court outlawed instantaneous triple talaq or Talaq-e-Biddat, it is now examining the validity of Talaq-e-Hasan, another form of triple talaq in which a Muslim man can divorce his wife by saying “talaq” once a month for three months.
The petitioner, Ghaziabad-based journalist Benazeer Heena, argued in 2022 that the practice is “discriminatory” since only men can exercise it, and sought a declaration that it is unconstitutional as arbitrary and violative of Articles 14, 15, 21, and 25 of the Constitution.
In her plea, Heena also alleged that the unilateral talaq process causes “gross affront to the dignity of women” and undermines their right to equality and to life with dignity.
The Supreme Court has now asked the National Human Rights Commission (NHRC), National Commission for Women (NCW), and the National Commission for Protection of Child Rights (NCPCR) to provide their opinions on Talaq-e-Hasan.
A bench of Justices Surya Kant and Joymalya Bagchi is hearing nine petitions related to the issue. The matter has been listed for November, according to Live Law.
HOW TALAQ-E-HASAN IS DIFFERENT FROM OTHER DIVORCE FORMS UNDER SHARIA
Talaq-e-Hasan is one of the two subtypes of Talaq-ul-Sunnat. The other type of divorce under Talaq-ul-Sunnat is Talaq-e-Ahsan.
While the now-outlawed instant triple talaq was supposed to have been pronounced by a Muslim man upon his wife if he spelled out the word ‘talaq’ (meaning divorce) three times in one instance and in one sitting, Talaq-ul-Sunnat is supposed to give time for such decisions.
Talaq-ul-Sunnat means divorce “according to Sunnah” – the method approved by Prophet Muhammad. In Islam, it is considered the proper, thoughtful way to divorce, giving time for reflection and reconciliation.
In Talaq-e-Hasan, the husband pronounces “talaq” once during a period when the wife is not menstruating (tuhr).
After this first pronouncement, there is a waiting period until her next menstrual cycle. If reconciliation happens during this time, the divorce process stops.
If the couple does not reconcile, the husband repeats the talaq in the second menstrual cycle, and again in the third cycle if separation is still desired.
After the third pronouncement, the divorce under Talaq-e-Hasan becomes final and irrevocable.
TELANGANA HC UPHELD MUSLIM WOMEN’S RIGHT TO KHULA
The Talaq-e-Biddat or instantaneous Triple Talaq was declared unconstitutional by the Supreme Court in 2017 in the Shayara Bano vs Union of India case.
After the verdict, the Muslim Women (Protection of Rights on Marriage) Act, 2019, outlawed the practice, criminalising it with penalties, including imprisonment, to protect Muslim women’s rights.
While Talaq-e-Ahsan and Talaq-e-Hasan are exclusively initiated by men, Mubarat can be initiated by either spouse but requires mutual consent.
Khula is the only form of divorce exclusively initiated by women among the four types of divorce in a Muslim marriage.
Holding a Muslim woman’s right to unilateral divorce through the Khula form of divorce under the Muslim Personal Law as absolute, the Telangana High Court in its June 25 judgment reignited conversations on marital equality and personal laws. A bench of Justices Moushumi Bhattacharya and BR Madhusudhan Rao delivered the landmark verdict in ‘Mohammed Arif Ali vs Smt Afsarunnisa and Another’ case.
The High Court heard a husband’s appeal against a family court order upholding his wife’s Khula granted by the Sada-e-Haq Sharai Council. Married in 2012, the wife alleged assault in 2017 and left home. After the husband denied her Khula, the council attempted reconciliation but issued a Khulanama in 2020. He argued the council lacked authority, but the court ruled a woman’s right to Khula is independent of her husband’s consent and needs no judicial decree unless contested.
While Khula is the only form of divorce that can be initiated unilaterally by a Muslim woman, Talaq-e-Hasan is part of Talaq-ul-Sunnat and provides time for the decision, unlike the now-banned instant triple talaq.
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