Talaq-e-Hasan row: Supreme Court seeks Centre's response on plea challenging Muslim divorce practices

SC seeks Centre's response on plea to frame guidelines governing all forms of 'talaq'

The Supreme Court on Friday sought responses from the Centre and other authorities on a petition seeking uniform procedural safeguards and guidelines for all forms of 'talaq' (divorce) under Muslim personal law.

A bench comprising Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi was informed by the petitioner's counsel that the plea also challenges the validity of 'Talaq-e-Hasan'.

'Talaq-e-Hasan' is a form of divorce under which a Muslim man can end his marriage by pronouncing the word 'talaq' once a month over three months.

The bench also tagged the petition with a separate pending plea filed by a Muslim woman challenging the validity of 'Talaq-e-Hasan' pronounced by her husband.

What does the fresh petition seek?

The fresh petition has sought a direction to the authorities to declare 'Talaq-e-Hasan' and other forms of unilateral extra-judicial 'talaq' an evil that needs to be banned.

It has also sought adequate economic and social protection for divorced women and their children affected by arbitrary forms of 'talaq'. The petition seeks these measures to be provided retrospectively and on an ongoing basis.

Plea seeks uniform safeguards for divorce

The petition has urged the Centre to "frame and implement uniform procedural safeguards and legally enforceable guidelines governing all forms of 'talaq'/divorce under Muslim personal law, so as to ensure fairness, reconciliation, transparency and protection of the fundamental rights of women guaranteed under Articles 14, 15 and 21 of the Constitution".

It has also sought a direction to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional to the extent that it recognises and validates 'Talaq-e-Hasan' as a valid form of divorce.

Petition calls for gender-just divorce rules

The plea has further urged the Centre to frame comprehensive, gender-just and religion-neutral procedural safeguards for the dissolution of marriages, including divorce under personal laws.

It said these safeguards should be in line with Articles 14, 15 and 21 of the Constitution, which deal with equality before the law, protection against discrimination and the right to life and personal liberty.

While Article 14 pertains to equality before law, Article 15 deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 pertains to protection of life and personal liberty.

The plea has sought to declare that "absence of statutory safeguards regulating polygamy under Muslim personal law, insofar as it permits a Muslim man to contract multiple marriages without ensuring equality, dignity, informed consent, financial security and constitutional protection to the existing wife/wives, is arbitrary, discriminatory and violative of Articles 14, 15 and 21 of the Constitution".

It also sought a declaration that contracting a subsequent marriage without the free, prior and informed consent of the existing spouse, by concealing or suppressing such intention, is arbitrary and unconstitutional.

Under 'Talaq-e-Hasan', a divorce gets formalised after the third utterance of the word 'talaq' in the third month if cohabitation has not resumed during this period.

However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled.

In 2017, the top court declared triple 'talaq', also a form of divorce prevalent among the Muslim community, as unconstitutional after finding it to be arbitrary and violative of the fundamental rights of women.