The Supreme Court on Tuesday said it is prima facie that the practice of talaq-e-Hasan by Muslim men for three months by calling the wife ‘talaq’ once a month for divorce is “not so unreasonable”.
A bench headed by Justice SK Kaul also asked the woman petitioner, who said her husband granted her “unilateral extra-judicial divorce” through an advocate when her father refused to pay more dowry, whether she Is ready to explore the option of mutual divorce. Consent if the question of ‘Mehr’ is addressed.
“We have also placed learned senior counsel whether, given the allegation of the irrevocable breakdown of the marriage of the respondent, the petitioner would be willing to settle on the amount to be paid over and above the Mehr, as decided by the process of divorce by mutual consent, In fact, we have brought to their notice that divorce is also possible without the intervention of the court through ‘Mubarat’,” a bench of Justice M M Sundaresh said in its order.
Senior advocate Pinky Anand, appearing for the petitioner, said she would take the direction following which the court adjourned the matter till August 29.
The petition by a journalist, Benazeer Heena, states that she was married on December 25, 2020, according to Islamic customs and a male child was born. Heena alleged that she was harassed by her husband and his family members over dowry, forcing her to return to her parents in December 2021. He said that however, he lodged a complaint with the Delhi Commission for Women and also lodged an FIR on April 5. 2022, police said talaq-e-Hasan is permitted under “Shariah” law.
Heena argued that all extra-judicial forms of divorce, including Talaq-e-Hasan, are “arbitrary and irrational and contrary to Articles 14, 15, 21, 25 (of the Constitution) and international conventions on civil human rights”. She stated that this practice “neither harmonizes with modern principles of human rights nor is an integral part of the Islamic faith. Many Islamic nations have outlawed such practices, while it is common in Indian society.” And Muslim women “especially like them”.
The petitioner urged the court to declare it invalid and unconstitutional. The plea has also sought a direction from the Center to frame guidelines for “gender neutral, religion-neutral, equal grounds of divorce and uniform process of divorce” for all.
The bench asked the petitioner whether he had disclosed the fact that he had also approached the Delhi High Court. Justice Kaul pointed out that the petitioner had sought adjournment of the proceedings before the HC and listed it on October 7, stating that something was pending before the Supreme Court. Advocate Ashwini Upadhyay, appearing for the petitioner, said that he had approached the Supreme Court in April.
Justice Kaul then remarked that it is not triple talaq and “prima facie, it (talaq-e-Hasan) is not so unfair”. The bench observed that if two persons cannot live together, the court grants divorce on the ground of irrevocable breakdown of marriage and asked whether the petitioner is ready for divorce by mutual consent if ‘Mehr’ is taken care of.
