TALAQ E HASAN

1. Background

Talaq-e-Hasan is an extra-judicial form of divorce prescribed in Islam that only men can practice.
It is a revocable form of divorce under Muslim personal laws.
These are a traditional form of divorce as approved by Prophet Mohammad and are valid according to all schools of Muslim law.
This form of divorce allows a man to pronounce divorce on his wife in three turns.
It is essential that this form of divorce is pronounced when the wife is not menstruating and there has to be a gap of one month between the three pronouncements.
The duration of these three consecutive talaqs is called the period of abstinence.
The duration of abstinence or ‘iddat’ is 90 days or three menstrual cycles or three lunar months.
If the couple starts cohabitation or intimacy during the period of abstinence, then the divorce is assumed to be revoked.
The idea behind introducing this form of talaq was so that the evil of divorce doesn’t become final at once.

2. The unconstitutionality of Triple talaq

In 2017, the Supreme Court declared Talaq-e-Biddat unconstitutional in the case of Shayara Bano v Union of India.
It is the form of divorce where the man pronounces divorce three times in one sitting and the marriage between the two parties comes to an end.
This form of divorce was declared unconstitutional in 2017 by a five-judge bench of the Supreme Court with a ratio of 3:2.
It was declared unconstitutional on grounds of being arbitrary and against the Quran.
The majority held that the practice was not covered by the Quran and therefore could not be protected under Article 25.

3. Challenges associated with talaq e Hasan

The form of talaq that is under challenge today is Talaq-e-Hasan, which requires the man to pronounce divorce in three turns and there has to be a gap of at least one month between each turn.

“Divorce was introduced in Islam to give an option to both men and women to end a marriage in case they are not leading happy lives together. Talaq-e-Hasan is the procedure of divorce to be followed by men mentioned in the Quran. There is nothing arbitrary about it because women also have the right to take a divorce, the process of initiation of divorce at the instance of a woman is called ‘Khula’. Talaq-e-Hasan is an essential religious practice.”
“Quran gives both men and women the right to divorce in case they’re unable to keep their marriage. For men the procedure given by Quran is Talaq-e-Hasan; for women, the procedure to give a divorce is called khula. Since women in Islam are also given the right to divorce a man in case they are unhappy in marriage, there is no question of talaq practice being unilateral. Talaq-e-Hasan cannot be declared unconstitutional because it is a procedure to seek dissolution in marriage and declaring it unconstitutional will deprive men of their right to seek divorce as per his religion.”

4. Talaq I Hasan in violative of Fundamental Rights

Talaq-e-Hasan violative of Articles 14, 15, 21 and 25 as
In light of the legal position of divorce discussed above it is difficult to determine the ‘unilateral’ nature of divorce that has been challenged before the apex court. It is also difficult to determine how a man’s right to pronounce extra-judicial divorce on his wife is violative of Articles 14 and 15.
Banning Talaq-e-Hasan will leave only women with the right to practice Khula, which will be unilateral and violative of Articles 14, 21 and 25 as it will be discriminatory against men.
The above discussion makes it clear that the Muslim Personal Law (Shariat) application act, 1937 allows both men and women to practice extra-judicial divorce. It will not just deprive men of practising extra-judicial divorce as per their religion but also women. Therefore, striking down the Act will result in a violation of Article 25.
There was a misconception among Muslims that the enactment of the Dissolution of Muslim Marriages Act, 1939 has done away with the extra-judicial form of divorce for women and that after its enactment divorce in the instance of women can only be sought through judicial means.
It is important to note here that the Act was brought with an objective to allow women to take a judicial route to obtain a divorce without touching upon their right to practice extra-judicial divorce. And the same has been confirmed by the Kerala high court.

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