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‘Not Improper’: Why SC’s View on ‘Talaq-e-Hasan’ Is of Significance

In Islam, talaq is one of the many methods for dissolving a marriage, with talaq itself having different forms.

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‘Talaq, Talaq, Talaq!’

Rings a bell?

Yes, the debate on talaq is back, this time in a new avatar: Talaq-e-Hasan.

Talaq-e-Hasan is one of the methods for the dissolution of a Muslim marriage. In this, a husband (or a wife, if the right has been delegated at the time of Nikah) informs his wife of his intention to terminate the marriage in three separate successive intervals. These intervals are usually of one month and act as the intervening period, accompanied by attempts at reconciliation.

What's the Latest Case About?

In May this year, a Public Interest Litigation was filed in the Supreme Court for the declaration of talaq-e-hasan as unconstitutional “for being arbitrary irrational & contrary to Articles 14, 15, 21, 25”. The petitioner in the case is a woman who had received a notice of talaq-e-hasan from her husband. The parties are Muslim. The petitioner alleges torture, both mental and physical, against her husband, along with demands of dowry. However, the husband has not been made a party to the petition. It is to be noted that when the matter was filed, the petitioner had received the first notice of talaq. The matter was mentioned before the court multiple times for an urgent hearing with the reasoning that the top court must hear it before the talaq attains finality and “everything gets over”.

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A Complex Question

On Tuesday, when the matter came up before the court, the Bench was quick to direct some questions to the petitioner. Apparently, there is a petition already filed by the petitioner arising out of the same subject matter in the Delhi High Court, with the husband being made party there.

The court was of the prima facie view that the “talaq-e-hasan practice is not so improper” and that the court does not want the issue to become “agenda for any other reason”. The court remarked how there are other methods of divorce available to Muslim women, and also mentioned the ‘Khula’ procedure.

The court recorded in its order how even without its intervention, divorce by mutual consent can be obtained by the parties, known as ‘Mubarat’.

However, there is a complex question. The court places before the party the option of ‘Mubarat’ for the dissolution of marriage when the process of Talaq-e-Hasan is already complete, along with the apparent failure of reconciliation between the parties and the service of the third notice subsequent to the required periodic intervals. As an irrevocable termination of marriage has already taken place, the question of adopting another method for divorce is perplexing.

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The Shadow of Shayara Bano Case

It was not the first time an issue related to talaq came before the apex court. The issue of Islamic divorce, mostly talaq, has been a topic of judicial curiosity. A five-judge Bench of the Supreme Court, as recently as in 2017, dealt at length with the issue of instant triple talaq, setting aside the practice by a majority of 3:2 vote in the Shayara Bano case. The majority view in this case (the then-Chief Justice Khehar, Justice Nazeer, and Justice Joseph), which is the law of the land as it stands today, was that personal laws, not statutory in nature, cannot be tested on the anvil of the rights contained in para III of the Constitution, ie, the part of the Constitution containing fundamental rights including Article 14, 15, etc.

The rationale of the three judges for invalidating instant triple talaq was rooted in diverse reasoning. While Justice Nariman and Justice Lalit held the practice to be ‘manifestly arbitrary’, Justice Joseph invalidated the practice as in his view, it violated Shariat itself. Sources other than Quran were held to be only supplementary in nature.

The Shayara Bano judgment did acknowledge the different modes of talaq, including talaq-e-hasan, which is the bone of contention in the present matter. Satisfying the various objections in the Shayara Bano case, talaq-e-hasan is a Quranic practice. It is not sinful, unlike talaq-e-bidat (instant triple talaq), and is not ‘manifestly arbitrary’ as there is a procedure in place with reasonable intervals of reconciliation period.

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Understanding Muslim Divorce

In popular culture, Muslim divorce has persistently been portrayed as instant triple talaq for some reason. If one says the words ‘divorce’ and ‘Islam’ together, snippets from the movie Nikah flash in people’s minds. The system of dissolution of marriage in Islam is an elaborate and meticulous system. In common parlance, talaq is often used as a synonym for divorce. However, talaq is one of the methods among many recognised methods to dissolve a marriage in the Islamic tradition, with talaq itself having different forms. The tradition imbibes the idea of both extrajudicial and judicial methods for the dissolution of marriage.

The recent order of the Supreme Court in the talaq-e-hasan matter does portray an appreciable attempt vis-à-vis the understanding of Muslim divorce.

Our courts acknowledged Muslim marriage as a contract as far back as 1886. However, our judiciary, slowly, is coming to terms with the consequence of a contractual marriage. The recent order on talaq-e-hasan reflects this change. The ‘Khula’ judgment of the Kerala High Court last year is another example.

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Keeping Legal 'Romanticism' in Check

In matters of divorce, emanating from personal laws or not, one of the major issues is the lack of discussion on how the discomfort around the topic of divorce is more a societal problem than of religion. For instance, in the present case, an educated woman working as a trained journalist states on the record the alleged torture she went through in her marriage. The better question is, why would an independent woman want to still live with a husband whom she alleges to have been severally tortured by? I find it baffling that our judicial system, which has liberally evolved the principles such as personal autonomy, would force a spouse (here a man) to be in a marriage he or she does not want to be in and has adopted a reasonable procedure to get out of a wrecked relationship.

Needless to say, allegations such as in the nature of cruelty or dowry already attract penal provisions and can be dealt with separately.

Another issue is the prejudice that non-majority practices carry. The line of thought of ‘gender-neutral uniform’ methods often fails to undertake a practical approach rooted in ethnographic lessons and legal pluralism. Legal romanticism, which usually emanates from a popular worldview, must be kept in check by our courts in order to circumvent chaos on the ground. To get a better perspective of such chaos, the adverse impact on the lives of Muslim women due to the Triple Talaq Act can be analysed. It must be noted that as per the oral observation of the court, the recent order on Talaq-e-Hasan reflects only the prima facie view of the court on the issue. The matter is still pending before the Supreme Court. Since the hijab issue has taken a pause in recent times with the top court not even listing the matter, it is not improbable that the talaq-e-hasan debate may turn into new Islamophobic fodder.

(The author practices law in the Supreme Court of India and the Delhi High Court. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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Topics:  Shayara Bano   Triple Talaq   Talaq 

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