Talaq-E-Hasan Not So Improper Prima Facie, Women Have Option Of Khula Divorce : Supreme Court

The Supreme Court on Tuesday made a prima facie observation that the practice of divorce through the Muslim personal law practice of Talaq-E-Hasan, as per which a man can divorce his wife by pronouncing "talaq" once a month for three months, is "not so improper".

The Court noted that Muslim women have the option of seeking divorce through "khula".

"Prima Facie this (talaq e Hasan) is not so improper. Women also have an option. Khula is there. Prima facie I don't agree with petitioners. I don't want this to become an agenda for any other reason", Justice Sanjay Kishan Kaul, the presiding judge of the bench, orally remarked.

A bench comprising Justices SK Kaul and MM Sundersh was hearing a writ petition filed by a Muslim woman challenging the constitutionality of divorce through "Talaq E Hasan" on the ground that it is discriminatory against women.

During the hearing, Senior Advocate Pinky Anand, appearing for the petitioner, submitted that though the Supreme Court has declared triple talaq unconstitutional, it left the issue of Talaq-E-Hasan undecided.

The bench pointed out to the petitioner that the Supreme Court has in many cases granted divorce on the ground of irretrievable breakdown of marriage and asked if she will be willing to explore that option after taking mehar.

"This is not Triple Talaq. You also have the option of 'Khula'. If two people cannot live together, we are granting divorce on the breakdown of marriage. Are you open to divorce by mutual consent if Mehar is taken care of...Even without the intervention of the court, Mubarat, which is permissible by consent. Are you willing to go by consent on subject to appropriate mehar?", Justice Kaul asked.

On the petitioner's counsel seeking time to get instructions, the bench adjourned the matter till August 29.

"Counsel for petitioner seeks time to obtain instructions...We have also put to counsel in the view of the allegation of the respondent of the breakdown of marriage, would the petitioner be willing for a settlement on amounts being paid over and above mehar being fixed", the bench noted in the order.

The Public Interest Litigation petition was filed by journalist Benazeer Heena through Advocate-on-Record Ashwani Kumar Dubey. The petitioner alleged that her husband has sent her the first installment of talaq through a speed post on April 19. The petitioner's counsel submitted that she received the second and third notices in the subsequent months.

The petitioner argues that the practice is discriminatory since only men can exercise the same and seeks a declaration that the practice is unconstitutional as it is arbitrary and violative of Articles 14, 15, 21 and 25 of the Constitution. According to the petitioner, it is not an essential practice of the Islamic faith.

Case Titel : Benazeer Heena v. Union of India And Ors. WP(C) No. 348/2022 (PIL)

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