Today, 19th November, Supreme Court questioned the Talaq-e-Hasan practice, saying it concerns a woman’s dignity and asking how such a practice can be encouraged in modern society, as it listed the matter for next Wednesday’s hearing amid growing constitutional scrutiny today.
New Delhi: The Supreme Court agreed to hear a plea challenging the constitutional validity of extrajudicial divorce practices among Muslims, including Talaq-e-Hasan.
The Bench of Justices Surya Kant, Ujjal Bhuyan, and NK Singh took up the matter after the NHRC requested more time to file its reply.
During the hearing, the petitioner’s counsel urged the Court to consider one specific case that showed extreme hardship.
The counsel said that the woman in this case was in a much worse condition than others and was being pushed into polyandry because of her husband. The counsel added that even the 11-page talaq notice did not bear the husband’s signature and had instead been issued by his advocate.
Senior Advocate M.R. Shamshad, appearing for the husband, told the Court,
“This is a recognised practice in Islam.”
Justice Surya Kant immediately raised doubts and asked,
“How can this be considered a practice? How are such new ‘innovations’ being brought in?”
Shamshad responded that if this was the Court’s concern, the process could be rectified.
He explained that “a husband could delegate this right to anyone, even to his wife.”
Justice Kant then questioned how the advocate even obtained the woman’s address. Shamshad replied that the husband had provided all instructions.
Justice Kant followed up by asking why the husband did not write to her himself.
The judge added,
“How can such a practice be encouraged in a modern society? This concerns a woman’s dignity. And what happens if tomorrow a client disowns his lawyer? We commend this woman for standing up for her rights but think of women who are not as privileged, who lack resources. She might remarry, and then the former husband could suddenly claim she is engaging in polyandry. Can a civilized society permit something like this?”
The petitioner’s counsel described her suffering, saying,
“I am crying and saying please please and he says ‘Talaq Talaq’.”
The counsel also highlighted the discriminatory impact of personal laws by stating,
“If there are four daughters why all the daughters have different rights. One married Hindu, another Christian, I married in my own religion which is Muslim and one married Parsi. Why should all have different rights.”
The petitioner herself appeared in court. The order recorded that the petitioner had explained her circumstances, including issues related to her child’s education.
The Bench said that certain directions were needed for the welfare of the child and to protect the petitioner’s dignity.
The AOR asked for permission to file an application, and the Court directed the registry to accept it even with defects. The Court also ordered that Respondent No. 9 must be present at the next hearing for the purpose of obtaining a valid divorce.
The matter has been listed for the next Wednesday.
Before rising, Justice Kant observed that the day was significant and said,
“Its an important day it is Constitution day lets do something.”
He then advised the lawyers to submit a brief note outlining the issues that may need constitutional interpretation.
Justice Kant said,
“Once you submit a brief note, we will consider whether the matter should be referred to a five judge bench. Outline the broad questions that could arise. We will then assess which of them are primarily legal issues requiring this Court’s determination. There are contentious points here we may not need to strike anything down each time, but there may be gaps or lacunae that the Court can regulate.”
Talaq-e-Hasan is a form of extrajudicial divorce allowed under certain Muslim personal laws. It is different from instant triple talaq (Talaq-e-Biddat) because here the process is gradual and follows a month-wise interval, giving room for reconsideration.
Case Title: Benazeer Heena v. Union of India & Ors.
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