Supreme Court deprecates Talaq-e-Hasan; indicates referring its challenge to Constitution bench

New Delhi: The Supreme Court on Wednesday deprecated the practice of Talaq-e-Hasan, saying it may consider referring the challenge to the validity of this kind of divorce among Muslims in India, to a larger five-judge Constitution bench.

Through Talaq-e-Hasan, a man can dissolve a marriage by pronouncing the word "talaq" once every month over a three-month period.

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

A bench of justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh asked if a civilised modern society should allow this.

The court asked the parties to submit notes with regard to types of Talaq which can be granted under Islamic practices.

The bench said it is not the question of striking down a prevalent religious practice but an issue which needs to be regulated as per the constitutional ethos.

"Once you give us a brief note we will consider the desirability of referring to a five-judge constitution bench. Give us broadly the questions that may arise. Then we will see how those are predominantly legal in nature that the court must resolve," the bench said, while observing that the practice affects society at large, the court may have to step in to take remedial measures.

The bench, which was hearing a batch of pleas of Muslim women challenging the validity of Talaq-e-Hasan given by their husbands, heard a petitioner Benazeer Heena, a journalist by profession, and said when these things are happening in Delhi and Ghaziabad, then what may be happening in far-off places in Odisha, Chhattisgarh and rural areas.

The bench said, "Society at large is involved. Some remedial measures have to be taken. If there are gross discriminatory practices, then the court has to interfere."

Senior advocate M R Shamshad, appearing for the ex-husband of Heena, said that it is a practice adopted among Muslims where the husband can authorise any person to give divorce notice to his wife on his behalf.

"What kind of thing is this? How are you promoting this in 2025? Whatever best religious practice we follow, is this what you allow? Is this how the dignity of a woman is upheld? Should a civilised modern society allow this kind of practice," the bench told Shamshad and questioned him what prevented the husband from directly contacting his ex-wife, if he can reach his lawyer or any other person.

The top court asked Shamshad to call the husband on the next date of hearing saying, "If Talaq is to take place as per religious practice then the entire procedure has to be followed as it is prescribed."

The bench said, "Now an advocate will start granting divorce? Tomorrow what will happen if a client disowns the advocate? We salute this woman, who has chosen to fight for her right. But there may be a poor woman, who does not know how to approach and have resources. Earlier husbands can come and say you are indulging in polyandry. Should a civilized society allow this kind of practice?"

Advocate Rizwan Ahmed, appearing for Heena, submitted that due to the manner in which her husband sent the Talaq-e-Hasan notice, she has been unable to prove that she has been divorced even though her husband has remarried and moved on, while she was still struggling to get her passport and other documents for getting her five-year-old kid enrolled in a school.

Heena, who herself addressed the court, choked while narrating her difficulties she was facing due to Talaq-e-Hasan given by her husband, which prompted the bench to ask to file a simple application and assured her that the court will look into it.

The bench said Heena, being a journalist, has the ability to move the top court but there may be many women from less privileged backgrounds who may be suffering in silence.

"Today, we have a journalist before us, a doctor in court. What about those unheard voices living in remote areas? Access to justice cannot be limited to those who can raise their voices," the bench said.

Ahmed submitted that Heena may be accused of practicing polyandry as the divorce notice was signed by another person, while Nikahnama, an Islamic marriage contract, was signed by another person.

The bench asked lawyers, including advocate Ashwini Upadhyay, appearing for different parties to submit the issues to be adjudicated by the court and also to specify, to what extent can the court get into these practices.

It allowed the application filed by All India Muslim Personal Law Board and Samastha Kerala Jamiyyathul Ulama to intervene in the matter and sought their submissions.

The top court had earlier sought the views of National Commission for Women (NCW), National Human Rights Commission (NHRC) and National Commission for Protection of Child Rights (NCPCR) on the issues.