EXPLAINER
The story so far: A public interest litigation (PIL) seeking to invalidate Talaq-e-Hasan, the prescribed Islamic way of divorce, has been filed in the Supreme Court.
What is the PIL about?
The petition filed by Benazir Hina, a Ghaziabad-based woman, through Advocate-on-Record Ashwani Kumar Dubey, seeks to make the prescribed Islamic way of divorce Talaq-e-Hasan unconstitutional as it is violative of Articles 14, 15, 21 and 25 of the Constitution. Ms. Hina, who claimed to have been unilaterally divorced through the Talaq-e-Hasan mode by her husband Yousuf, also prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 that permits Muslims to practise unilateral divorce be declared void. The apex court had declined an urgent hearing on the subject in May this year. However, on June 17 a vacation Bench of Justices A.S. Bopanna and Vikram Nath allowed a plea for urgent hearing of the matter. It was argued that the aggrieved lady and her child would be left without a remedy if no intervention was made. The first talaq notice was given on April 19 and the second notice was issued on May 19.
The hearing comes almost five years after the five judge Bench headed by then Chief Justice J.S. Khehar, and including Justice R.F. Nariman, Justice Kurian Joseph, Justice U.U. Lalit and Justice S. Abdul Nazeer had invalidated instant triple talaq in their verdict in the Shayara Bano vs the Union of India and others case in August 2017. The invalidation of instant triple talaq where the court held, “What is bad in theology is bad in law as well”, led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act 2019.
How is Talaq-e-Hasan different from instant triple talaq?
In instant triple talaq a man pronounces multiple divorce in one go. It has no scope for reconciliation between the feuding couple, and often ends a marriage instantly. It is, as the judges held, not mentioned anywhere in the Quran which prescribes a code of divorce largely through Surah Baqarah, verses 226 to 237 and the opening six verses of Surah Talaq. Incidentally, triple talaq in this manner has been banned in many Muslim countries, including Egypt, Syria, Jordan, Kuwait, Iraq, Malaysia etc.
Unlike instant triple talaq, Talaq-e-Hasan is pronounced with a gap of at least one month or one menstrual cycle. Only a single revocable divorce takes place through the first pronouncement of Talaq-e-Hasan. The husband and wife are supposed to live together after this pronouncement and have the option of rapprochement. If the couple is not able to mend fences in the intervening period and the husband does not annul divorce through word or by establishing intimacy, the talaq stays valid. At the end of this month, the husband has to pronounce divorce for the second time. Likewise for the third time. After the second pronouncement too, the divorce is revocable, and the couple may resume their conjugal relationship anytime they so desire. If, however, the third pronouncement is made after at least one menstrual cycle, then irrevocable divorce takes place. Significantly, no divorce can be administered when the woman is undergoing her menstrual cycle. Even in the case of pregnancy, no divorce takes place. And if such a pronouncement is made, it remains in abeyance till the end of pregnancy.
Ms. Hina argues that her divorce is invalid as she received her divorce notices when she was undergoing her menses. Unlike instant triple talaq, the Quran clearly mentions the process of Talaq-e-Hasan. According to Surah Baqarah, verse 229, “Divorce can be pronounced twice; then either honourable retention or kindly release should follow…” Likewise the opening verse of Surah Talaq states, “O Prophet, when you divorce women, divorce them for their waiting period, and compute the waiting period accurately…Do not turn them out of the homes (during the waiting period) nor should they go away…”
Are there other options of divorce apart from the Talaq-e-Hasan?
The third option of divorce besides Talaq-e-Hasan and the now repudiated instant triple talaq, is Talaq-e-Ahsan. Under this form, a single pronouncement is made. Following the pronouncement, a woman has to go through iddat or a waiting period of three months.
During this period the divorce can be cancelled. However, failure to annul divorce during this period results in it being finalised after which a woman is independent, and free to marry another man or stay single, as she may choose. Both Talaq-e-Hasan and Talaq-e-Ahsan enjoy legal validity in almost all Muslim countries.
Interestingly, women too have a right to end an unsuccessful marriage through Khula. Here a woman gives something to the man in return for annulling the marriage.
In April 2021, the Kerala High Court held this form of divorce valid. The court overruled a 49-year-old verdict in K.C. Moyin vs Nafeesa and Others (1972) that barred Muslim women from dissolving their marriage through non-judicial modes.
There is some debate among Islamic scholars on the ways of Khula. Some hold that the man’s consent is necessary in Khula while most say that he enjoys no such privilege.
