Supreme Court Stays Muslim Husband's Talaq-E-Hasan Divorce To Illiterate Wife; Couple To Remain Married Until Talaq Proven Valid

The Supreme Court today stayed the operation of a talaq-e-hasan divorce given by a Muslim husband to his illiterate wife, noting that there were allegations of his obtaining her signatures on a blank paper and he did not appear to defend them.

A bench of CJI Surya Kant and Justice Joymalya Bagchi passed the order. When apprehensions were expressed by Senior Advocate MR Shamshad (appearing for respondents in a connected case), while pointing out that talaq-e-hasan is still a valid form of Muslim divorce, the CJI said that the Court was not rendering it invalid. The stay was necessitated in the case as the husband did not enter appearance and the wife had levelled serious allegations, the CJI said.

"As he (husband) has not come forward to deny the allegations, we stay operation of the alleged talaq-e-hasan resorted to by him for divorcing the petitioner. Having stayed that, we direct that parties shall be deemed to be a validly married couple unless husband comes forward and shows that valid talaq has been given. Concerned SHO to find out whereabouts of husband and ensure his presence before this court", the bench ordered.

In passing the order, it observed that the petitioner was an illiterate woman and a homemaker, who was stated to be a victim of "unilateral extra-judicial talaq-e-hasan". She had made several allegations against respondent No.9-husband, with whom she got married in 2021. Notice was issued to the respondent and service was complete, yet he did not enter appearance.

The bench also issued notice on another petition challenging Talaq-E-Ahsan as violative of Articles 14, 15 and 21 of the Constitution. Reportedly, the petitioner in this case, represented by Senior Advocate Jayna Kothari, was given talaq by the respondent-husband through email, WhatsApp and registered post. She seeks guidelines, pending legislative action, to ensure that Muslim women subjected to "unlawful talaq, retaliatory criminal proceedings and police bias" are not left remediless.

In the lead case pertaining to Benazeer Heena, the Court was informed by Heena's counsel, Advocate Dr Rizwan Ahmed, that a contempt petition had been filed, as pursuant to the Court's last order, talaq was again attempted to be granted in an invalid manner. After hearing both sides, the Court ordered mediation between the parties. The dispute shall now be mediated by former Supreme Court judge Justice Kurian Joseph.

"We find that there is an urgent and dire necessity of referring the parties to mediation for finding out an amicable solution and consequential valid dissolution of their marriage through a valid talaq, or, the parties with the help of senior mediator might find some other alternative to resolve dispute. Upon our suggestion, the parties have fairly agreed to go to mediation. Keeping the complex issue and background of this case, we request Justice Kurian Joseph - a former judge of this court - to act as sole senior mediator. The parties/their counsels are directed to contact J joseph on his mobile by tomorrow and fix a date for mediation", the Court ordered.

The Court requested Justice Joseph to make an endeavor to resolve the dispute between Heena and her lawyer-husband within 4 weeks. In view of mediation having been initiated, it further directed that the earlier talaqs alleged to have been given by the respondent-husband shall remain in abeyance.

Notably, the Court was requested by Dr Rizwan to pass an interim order restraining talaqs by virtual modes (like WhatsApp, email, etc.). However, the bench refused to pass such order at this stage, with the CJI indicating that the Court would like to pass appropriate orders after hearing both sides. The CJI underlined that very complex issues are intertwined with human emotions in the subject cases. "It is a slightly sensitive matter", he said.

Appearance: Senior Advocate MR Shamshad (for respondent); Senior Advocate Jayna Kothari (for a petitioner); Advocate Dr Rizwan Ahmed and AoR Pulkit Agarwal (for Benazeer Heena); Advocate Nizam Pasha

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