Talaq-e-Hasan under SC lens: How it is different from Talaq-e-Biddat

The Muslim Women (Protection of Rights on Marriage) Act, 2019 declared the instant divorce granted by pronouncement of talaq three times as void and illegal

The issue of triple talaq is back in the Supreme Court. On Wednesday, a bench comprising Justices Surya Kant, Ujjal Bhuyan, and N Kotiswar Singh was hearing a petition against Talaq-e-Hasan, a form of divorce under Muslim personal law in which a man can dissolve his marriage by saying 'talaq' once a month over three months.

 

The court said it might refer the issue to a five-judge Constitution Bench and asked all sides to file notes outlining the key legal questions that require examination.

 

The public interest litigation (PIL) was filed in 2022 by journalist Benazeer Heena, who sought a declaration that the practice is unconstitutional, since it is "irrational, arbitrary, and violative of Articles 14, 15, 21, and 25 of the Constitution". 

 

Earlier, the Muslim Women (Protection of Rights on Marriage) Act, 2019 rendered Talaq-e-Biddat unconstitutional.

 

Let's take a look at what Talaq-e-Hasan is, how it is different from Talaq-e-Biddat, and what the other types of divorces are in the Islamic religion.

Talaq in Muslim personal law

According to Kitab al-Talaq, or the book of divorce, a divorce is of three kinds: the Ahsan, Hasan, and Biddat.

What is Talaq-e-Hasan?

Under Talaq-e-Hasan, the husband says 'talaq' only once a month, normally during a period when the wife is not menstruating. After the first declaration, the couple waits for a month. If the husband repeats the second declaration the next month, the marriage still continues, and the couple can rethink and reconcile. If the husband says it the third time in the third month, the divorce becomes final.

What is Talaq-e-Biddat?

Talaq-e-Biddat, also known as instant triple talaq, is a method where the husband says 'talaq' three times in one sitting, whether orally, in writing, or even through electronic messages. The divorce becomes final immediately, without any waiting period or chance for the couple to reconsider.

Other forms of divorce in Islamic law

Islamic law recognises several other ways in which divorce can happen apart from Talaq-e-Hasan and Talaq-e-Biddat. One common form is Talaq-e-Ahsan, where the husband gives only one talaq and then waits through the wife’s iddat (waiting period).

 

There is also Khula, which allows the wife to seek divorce from the husband, usually by returning the mahr (dower), while Mubarat is a divorce by mutual consent, where both husband and wife agree to separate.

Why was Talaq-e-Biddat banned?

In 1981, Shah Bano, a Muslim woman in her 60s, reached the Supreme Court seeking maintenance from her ex-husband after he gave her talaq. Her husband argued that under Muslim personal law, he was only required to provide maintenance during the iddat period and that once he paid mehr (dower), his obligation ended.

 

In 1985, the Supreme Court held that Section 125, which oversees the maintenance of wives, children, and parents, was a secular law and applied to all citizens, including Muslims. It ruled that a divorced Muslim woman who had not remarried was entitled to maintenance beyond the iddat period if she could not maintain herself.

 

In 2017, the issue again came to the limelight after another Muslim woman, Shayara Bano, challenged this practice before the Supreme Court, stating that the practice is discriminatory and against the dignity of women.

 

Bano was granted instant Triple Talaq through a letter, ending their 14-year marriage. Her husband also denied her the custody of her two children.

 

In 2017, the Supreme Court struck it down, and in 2019, the government passed a law making instant triple talaq a criminal offence. According to the law, any husband who practices this will be fined and imprisoned for up to 3 years.