The Top Court has said the practice of divorce in Muslims through ‘Talaq-e-Hasan’ – which is pronounced once a month over three months – is not similar to triple talaq and the women also have an option of ‘khula‘.
In Islam, a man can take “talaq“, while a woman can part ways with her husband through “khula“.
A bench of Justices SK Kaul and MM Sundresh said if husband and wife cannot live together, it can also grant a divorce on the ground of irretrievable breakdown under Article 142 of the Constitution.
The top court was hearing a plea seeking to declare ‘Talaq-e-Hasan’ and all other forms of “unilateral extra-judicial talaq as void and unconstitutional”, claiming they were “arbitrary, irrational, and violated fundamental rights”.
“This is not triple talaq in that sense. Marriage being contractual in nature, you also have an option of khula. If two people cannot live together, we are also granting divorce on ground of irretrievable breakdown of marriage. Are you open to divorce by mutual consent if ‘mehar‘ (gift given in cash or kind by groom to bride) is taken care of? “Prima facie, I don’t agree with petitioners. I don’t want this to become an agenda for any other reason,” the bench observed.
Senior advocate Pinky Anand, appearing for the petitioner Benazeer Heena, submitted that though the top court has declared triple talaq unconstitutional, it left the issue of Talaq-e-Hasan undecided.
The top court asked Anand to seek instructions whether in view of allegation of the irrevocable breakdown of marriage, would the petitioner be willing for settlement by process of divorce on amount being paid over and above ‘mehar‘.
It also told the petitioner that dissolution of marriage is also possible without the intervention of this court through ‘mubarat‘ and asked her counsel to seek instructions.
The top court will now hear the matter on August 29.
The petition, filed by Ghaziabad resident Heena, who claimed to be a victim of Talaq-E-Hasan, also sought a direction to the Centre to frame guidelines for neutral and uniform grounds of divorce and procedure for all citizens.
In Talaq-e-Hasan, divorce gets formalised after the third utterance in the third month if cohabitation is not resumed during this period. However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled and the first or second utterances of talaq are deemed invalid.