SC mulls abrogating Talaq-e-Hasan, asks should civilised society permit it

The top court was hearing a PIL filed in 2022 by journalist Benazeer Heena, who sought a declaration that the practice is unconstitutional

The Supreme Court on Wednesday indicated that it may consider invalidating Talaq-e-Hasan, a form of divorce under Muslim personal law under which a man can dissolve his marriage by saying “talaq” once a month over three months, Bar and Bench reported

 

A bench comprising Justices Surya Kant, Ujjal Bhuyan, and N Kotiswar Singh 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 court said, "Once you give us a brief note, we will consider the desirability of referring 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."

 

What is the case about?

 

The top court was hearing a public interest litigation (PIL) 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".

 

The petitioner also requested that the court frame gender- and religion-neutral guidelines on the procedure and grounds for divorce.

 

According to the petitioner, her husband allegedly divorced her by sending a Talaq-e-Hasan notice through a lawyer, following her family's refusal to pay dowry. She has further alleged harassment by her in-laws.

 

She recounted multiple incidents of abuse by her husband and his family, adding that she had approached the Delhi Commission for Women (DCW) and filed a First Information Report (FIR). Despite this, the police allegedly informed her that the practice was allowed under Sharia law.

What did the court say?

 

The advocate appearing for Heena's husband informed the court that sending a Talaq-e-Hasan notice is a common practice in Islam. 

Justice Kant told the husband’s lawyer that if a divorce is to be carried out as per religious custom, then the full process prescribed must be followed. The bench also questioned why this was not conveyed directly to the petitioner.

 

According to Heena's counsel, due to Talaq-e-Hasan, she has been unable to prove that she is divorced, despite the husband remarrying. "The problem started with the schools where I wanted to get my child admitted. Everywhere I said I was a divorcee, my papers were not accorded. Admission was rejected. I told the father has moved on, married again. I don’t know the technicalities," her counsel said.

 

The court observed that the practice has wider social implications and may require judicial intervention to address its impact. "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 observed orally.

 

It also asked how a system that undermines the dignity of women could still be permitted in a modern society. "What kind of thing is this? How are you promoting this in 2025? Whatever the best religious practice we follow, is this what you allow? Is this how the dignity of a woman is upheld? Should a civilised society allow this kind of practice?" the judge asked.

 

The court listed the matter for hearing on November 26 and directed the counsel to apply with all the required details. The bench advised Heena’s husband to adhere to the established procedure for divorce and directed him to appear before the court at the next hearing.

 

Justice Kant additionally noted that while Heena, being a journalist, had the means to approach the Supreme Court, many women from disadvantaged backgrounds may be suffering silently without access to legal remedies.