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Won’t pander to agenda, will focus on relief to women: SC on Talaq-e-Hasan
In Talaq-e-Hasan, ‘talaq’ (divorce) is pronounced once a month, over a period of three months. If cohabitation does not resume during this period, the divorce is formalised after the third utterance.
Observing that it will not pander to “any agenda” on divorce under the Muslim law, the Supreme Court on Tuesday said that Talaq-e-Hasan may not be an improper form of divorce when a couple is able to separate by mutual consent without any prejudice caused to the wife.
In Talaq-e-Hasan, talaq is pronounced once a month, over a period of three months. If cohabitation does not resume during this period, the divorce is formalised after the third utterance. However, if cohabitation resumes before the third utterance of talaq, the parties are assumed to have reconciled.
Taking up a petition by an aggrieved Muslim woman who was served the third notice of Talaq-e-Hasan in June, a bench of justices Sanjay Kishan Kaul and MM Sundresh remained unequivocal that the top court, in these cases, should be focussed on ensuring relief to women, steering clear of any agenda that may be sought to be achieved by anybody.
“Prima facie, this (Talaq-e-Hasan) is not so improper...when there is a principle that applies both to men and women. Women also have an option. ‘Khula’ is there. Prima facie, we don’t agree with the petitioner,” said the bench.
The court added: “We don’t want to make this into some kind of an agenda for some other reasons...and then finally, the lady does not benefit at all after the proceedings.”
‘Khula’ and ‘Mubarat’ are two types of divorce by mutual consent under the Muslim personal laws. ‘Khula’ is put into motion at the instance of wife, with or without an offer from her of a monetary consideration to the husband. In ‘Mubarat’, both husband and wife agree to dissolve the marriage. So, the offer of separation can come from either the husband or wife. ‘Mehr’ is a sum of money that the husband has to pay to the wife on marrying her.
In the Supreme Court, the petitioner woman has sought to get Talaq-e-Hasan and all other forms of “unilateral extra-judicial talaq” under the Muslim law declared as unconstitutional, claiming they are arbitrary, irrational, and violate fundamental rights of women. She has also asked for directions to the Centre for framing guidelines for religion-neutral and uniform grounds of divorce for all citizens.
Appearing for her, senior advocate Pinky Anand on Tuesday cited the top court’s landmark judgment in 2017 that struck down instant triple talaq (Talaq-e-Biddat) as being unconstitutional and violative of rights and dignity of Muslim women.
But the bench replied: “However, this is not triple talaq. The marriage being contractual in nature under the Muslim law, you also have the option of ‘khula’. If two people cannot live together, we are granting divorce on breakdown of marriage exercising our powers under Article 142 (authority to do complete justice).”
It further asked Anand: “We have been giving divorces when a couple is not able to live together and there is irretrievable breakdown of marriage. So, are you open to divorce by mutual consent if ‘Mehr’ is taken care of?”
Opining that ‘Mubarat’ also provides for divorce through mutual consent among Muslim couples, the court sought to know from the senior lawyer if her client would be willing for a consideration on the adequacy of ‘Mehr’.
The court told Anand that its endeavour is to bring some relief to her client and that when a Muslim couple is not able to live together, adequacy of ‘Mehr’ is also an important consideration towards that purpose.
To this, Anand agreed to consult her client and revert. She, however, pointed out that divorce under ‘Khula’ is permitted only when a fault can be attributed to the husband. But the bench responded that the impression may not be right.
At this point, advocate Shahrukh Alam sought to intervene on behalf of another Muslim woman who has claimed that she could exit from a bad marriage by obtaining divorce through ‘Khula’. According to her application, Muslim personal law permitted women to come out of a bad marriage without having to go to the court and add to the pendency of judicial proceedings.
Alam also complained that the petitioner before the Supreme Court has already moved a similar plea before the Delhi high court and therefore, she should be sent back to the high court to pursue her remedies there first.
The bench, on its part, said it will consider all the aspects of the matter after Anand comes back with instructions from her client.
“The counsel for petitioner (Anand) seeks time to obtain instructions. We have also put to counsel that in the view of the allegation of the breakdown of marriage, would the petitioner be willing for a settlement on amounts being paid over and above ‘Mehr’ being fixed,” the bench recorded in its order, fixing August 29 as the next date.
According to the petitioner, her husband went ahead with the divorce after her family refused to pay additional dowry. The husband sent her the first notice of Talaq-e-Hasan through post in April; the second intimation in May ; and the final one in June, she contended in the petition filed through advocate Ashwini Dubey.
Calling the practice an “unilateral extra-judicial” form of divorce, the plea stated that banning it is the need of the hour since the practice is not harmonious with human rights and equality.
“Many Islamic nations have restricted such practice, while it continues to vex the Indian society in general and Muslim women like the petitioner in particular. It is submitted that the practice also wreaks havoc to lives of many women and their children, especially those belonging to the weaker economic sections of the society,” added the plea. It said that the practice is misused and that since only men can exercise the same, it is discriminatory as well.
In 2017, a constitution bench by 3-2 described instant triple talaq as “manifestly arbitrary” and said that it allows a man to “break down a marriage whimsically and capriciously”. The top court held that it is the duty of the courts to ensure that what is protected as an essential religious practice is in conformity with fundamental constitutional values and guarantees and accords with constitutional morality.
