Prima facie talaq-e-hasan is ‘not so improper’ says Supreme Court

The Supreme Court on Tuesday, August 16, 2022, clear observed that the Muslim personal practice of talaq-e-hasan is "not so improper".

Talaq-e-hasan could be a variety of divorce by which a Muslim man can divorce his wife by pronouncing talaq once monthly over a three-month period.

Also read: Five years after Supreme Court’s triple talaq verdict, petitioners living life as ‘half-divorcees’

A Bench led by Justice Sanjay Kishan Kaul said a Muslim woman has the choice to divorce by the method of khula by returning the dower ( mahr) or something else that she received from her husband or without returning anything, as agreed by the spouses or Qadi's (court) decree reckoning on the circumstances.

"Prima facie this ( talaq-e-hasan) isn't so improper. Women even have an option. Khula is there. clear I don't consider the petitioner. I don't want this to become an agenda for the other reason," Justice Kaul remarked orally.

The court's clear remarks came while hearing a petition filed by journalist Benazeer Heena, represented by senior advocate Pinky Anand and advocate Ashwani Kumar Dubey.

The petitioner argued that talaq-e-hasan and "other types of unilateral extra judicial talaq is an evil plague the same as sati".

"Talaq-e-hasan is bigoted, irrational and contrary to Articles 14, 15, 21 and 25 and international conventions on civil rights and human rights," the petition submitted.

It said there should be a "gender neutral, religion neutral, uniform grounds of divorce and uniform procedure of divorce for all citizens".

The petitioner argued that the practice in question was "neither harmonious with the fashionable principles of human rights and gender equality nor an integral a part of Islamic faith".

Ms. Anand said the apex court, while striking down triple talaq within the Shayara Bano case, failed to address the problem of talaq-e-hasan. She said the practice discriminated against Muslim women as they can't resort to that against their husbands. Ms. Anand said the unilateral practice of divorce was "abominable".

The Bench however said the court has granted couples who cannot bear one another divorce on the bottom of irretrievable breakdown of marriage. It asked whether the petitioner was willing to explore this selection if the problem of mehar was taken care of.

The court said the problem under question wasn't instantaneous triple talaq or talaq-e-biddat. It repeated that the petitioner could go for divorce through the khula procedure.

"Would the petitioner be willing for a settlement on amounts being paid over and above mehar being fixed?" the court asked the petitioner side.

Ms. Anand sought time to induce instructions. The court adjourned the case to August 29.