Law & Justice

Supreme Court Seeks Centre’s Reply on Petition Challenging Muslim Divorce Practices

By Kanishka Singharia

The Supreme Court on Friday asked the Centre and other authorities to respond to a petition that seeks uniform procedural safeguards and guidelines for all forms of ‘talaq’ under Muslim personal law. A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi was briefed by the petitioner’s counsel that the plea also challenges the validity of ‘Talaq‑e‑Hasan’. Under this form of divorce, a Muslim man can end his marriage by pronouncing the word ‘talaq’ once a month over three months.

The bench also linked the petition to a separate pending plea filed by a Muslim woman who contests the validity of the ‘Talaq‑e‑Hasan’ pronounced by her husband. The new petition seeks a direction to authorities to declare ‘Talaq‑e‑Hasan’ and other unilateral extra‑judicial ‘talaq’ as unlawful and to ban them. It also requests adequate economic and social protection for divorced women and their children affected by arbitrary forms of ‘talaq’, and asks that these measures be applied retrospectively and continuously.

The petition urges 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 also seeks 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.

The plea further calls for comprehensive, gender‑just and religion‑neutral procedural safeguards for the dissolution of marriages, including divorce under personal laws, in line with Articles 14, 15 and 21. It argues that the absence of statutory safeguards regulating polygamy under Muslim personal law, which permits a Muslim man to contract multiple marriages without ensuring equality, dignity, informed consent, financial security and constitutional protection for the existing wife or wives, is arbitrary, discriminatory and violates Articles 14, 15 and 21. It also seeks 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 is formalised after the third utterance of the word ‘talaq’ in the third month if cohabitation has not resumed during this period. If cohabitation resumes after the first or second utterance, the parties are assumed to have reconciled. In 2017, the Supreme Court declared triple ‘talaq’, another prevalent form of divorce among Muslims, unconstitutional after finding it to be arbitrary and violative of women’s fundamental rights.

(With inputs from news agency PTI)