Supreme Court Flags Lacuna In 'Talaq-e-Hasan', Questions Practice Of Husbands' Lawyers Sending Talaq Notices To Wives

The Supreme Court on Wednesday flagged certain issues in the practice of 'Talaq-e-Hasan', a form of divorce in Islamic law, and raised concerns over the practice of husbands' lawyers sending Talaq notices to wives. This enabled the husbands to later deny issuing Talaq and accuse wives of polyandry when they remarry, the Court observed.

The Court sought for inputs from the parties on the possibility of judicial interference.

Talaq-e-Hasan is a form of divorce in Islamic law where the husband pronounces talaq once a month over a period of three months. It is considered a revocable and staggered form of divorce, unlike instantaneous triple talaq (talaq-e-biddat, which was declared unconstitutional by the Supreme Court in 2017).

Hearing pleas challenging Talaq-e-Hasan, the Court today expressed that there are debatable issues worthy of consideration in the matter and lacunae, if any, in remaining valid forms of Muslim divorce may be "regulated", instead of being struck down like talaq-e-biddat.

A bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh heard the matter. The petitions have been filed by Muslim women, who faced Talaq-e-Hasan and complained of discriminatory treatment.

Emphasizing on a need to consider the larger issues raised in the matter, and not just the factual matrix of the petitioners' cases, Justice Kant said,

"Today we have a doctor and journalist before us. We consider them to be part of vigilant and upgraded part of society. But what about the unheard voices? Some are illiterate, some living in remote areas...if they are facing this kind of hardship? Access to justice should not be confined to only those who can raise voice in Court."

The lead petition listed before the Court was filed by journalist Benazeer Heena, claiming that her husband sent her the first notice of talaq through a speed post on April 19. The second and third notices were received in the subsequent months.

Highlighting her grievance, her counsel today submitted that Heena risks being accused of polyandry because of her husband, as the talaq notice served on her did not bear the husband's signature and was in fact, sent by the husband's advocate.

"She will indulge herself in polyandry because of her husband. In the 11-page talaq notice, sign of husband is missing. Talaq pronounced by husband's advocate!", the counsel urged. In response, Senior Advocate MR Shamshad (for Heena's husband) told the Court that it is common practice in Islam for a talaq notice to be served by a husband's advocate.

Surprised, Justice Kant opined, "Can this be a practice? How these new innovative ideas are being invented? Assuming whatever religious practices are there, at least that should be performed by the person with whom the relationship is there." However, Shamshad urged that under Muslim law, a husband can appoint someone else to issue a talaq notice or delegate the right to his wife. 

When the bench questioned how the advocate came to know about Heena's address, the senior counsel stated that he was instructed by the husband. Later, on learning that Heena's husband himself is an advocate, Justice Kant said it was "most unfortunate" and expressed displeasure at the lawyer-husband's failure to directly issue notice to Heena.

"What prevents the husband to directly write communication to her? He has such ego that even for divorce he cannot speak to her? How are you promoting this kind of thing in modern society? These are the kind of things you will allow? It is [about] dignity of woman. Now advocate will start granting divorce? Tomorrow what will happen if a client disowns the advocate? We salute this woman who has chosen to fight for her right. But there may be a poor woman, who does not know…does not have resources…she remarries…earlier husband can come and say you are indulging in [polyandry]. Should a civilized society allow this kind of practice?"

Subsequently, Heena, who was herself present in Court, apprised the bench about her plight since the issuance of talaq notice by her husband's advocate. She highlighted how her 4-year-old child has been denied admission by schools and how she was mocked at a passport office for relying on a talaq notice not signed by the husband as proof of being a divorcee. Her counsel also emphasized that Heena was paid only a lumpsum amount of Rs.17,000 by the husband. Heena further informed that her husband has moved on in life and gotten remarried.

Ultimately, the Court assured Heena of requisite assistance, asking her to file an application giving necessary details about prospective schools for the child, difficulty in getting passport, etc. It also called on Heena's husband to appear in Court on the next date and follow the prescribed procedure for divorce. "Let him gracefully come here and whatever now she is wanting, let him unconditionally provide. He can't possibly have a right to enjoy his own life and destroy her life", said Justice Kant.

The application to be filed by Heena was directed to be listed on November 26. "It's Constitution Day and therefore we must do something", said Justice Kant.

Heena's counsel was asked to assist the Court on the larger issues impacting society, specifically as to what extent the Court can interfere. "Also [assist] on why the Court should not interfere where such kind of very gross, discriminatory and grossly exploitative practices are suppose there, then why not the Courts should interfere in this kind of affair also? And then what should be the norms which can be laid down through judicial platform", said Justice Kant.

Advocate Ashwini Upadhyay appeared for a 25-yr old petitioner-woman and submitted that her husband pronounced "talaq, talaq" at the same time (like talaq-e-biddat, except he pronounced it twice instead of thrice). He highlighted that the petitioner does not have any talaqnama as a proof of divorce. "In Shayara Bano, 5 types of divorce were challenged. I have the 6th one today. Court only dealt with talaq-e-biddat then. Why I should be discriminated? Why should I not have same right as other daughters? If I have sisters married in other religions, why all sisters should not have common right? Common maintenance? Husband not giving a single rupee", Upadhyay argued.

When Upadhyay urged that the matter be referred to a 5-judge bench, as triple talaq issue was also decided by a 5-judge bench, Justice Kant said that a 3-judge bench may suffice. The judge however added that desirability of referring the matter to a 5-judge bench may be considered after parties place before the Court a note on issues arising for consideration.

The Court also allowed two intervention applications filed in the matter by the All India Muslim Personal Law Board and Samasth Kerala and the Samastha Kerala Jem-iyyathul Ulama (represented by Advocate Nizam Pasha). It further granted more time to the NHRC to file a detailed response.

Case Title: BENAZEER HEENA Versus UNION OF INDIA AND ORS., W.P.(C) No. 348/2022 (and connected cases)

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