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Judicial Validity of the Talaq-e-Hasan mode of Divorce

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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 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.
  • The petitioner has been unilaterally divorced through the Talaq-e-Hasan mode by her husband.
  • She also prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 that permits Muslims to practise unilateral divorce be declared void.

Basis of the PIL

  • The hearing comes almost five years after the five judge Bench headed by then CJI J.S. Khehar invalidated instant triple talaq in their verdict in the Shayara Bano vs the Union of India Case.
  • 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.

What is 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, Pakistan, Jordan, Kuwait, Iraq, Malaysia etc.

How is Talaq-e-Hasan different from instant triple talaq?

  • 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.

Why such hue over menstrual cycle?

  • 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.

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.

Legal status of Khula in India

  • 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 religious 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.

 

 

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