SC bench to examine validity of Talaq-e-Hasan and Talaq-e-Ahsan

The Supreme Court will hear petitions challenging the validity of unilateral talaq practices, raising concerns over Muslim women’s rights, while examining constitutional issues and broader questions including electronic divorce and safeguards for affected individuals.

New Delhi: The Supreme Court is slated to hear on Thursday a batch of petitions challenging the constitutional validity of unilateral divorce practices in the Muslim community, including Talaq-e-Hasan and Talaq-e-Ahsan, which permit a Muslim man to dissolve a marriage without the consent of the wife.

As per the cause list published on the apex court’s website, the matter is listed for hearing on March 19 before a Bench comprising Chief Justice of India (CJI) Surya Kant, and Justices Joymalya Bagchi and Vipul M. Pancholi.

---

The pleas raise questions about whether such forms of “extra-judicial” divorce violate fundamental rights guaranteed under Articles 14, 15, and 21 of the Constitution, particularly the rights to equality and dignity of Muslim women.

During the previous hearing, the top court had passed interim directions in individual cases while refraining from making any conclusive determination on the validity of the practices themselves.

In one such case, the CJI Kant-led Bench had stayed the operation of an alleged Talaq-e-Hasan pronounced by a husband against his wife, noting that the respondent had failed to appear before the top court to contest the serious allegations levelled against him. “In such circumstances… we stay operation of the alleged Talaq-e-Hasan… and direct that the petitioner (wife) and respondent shall be deemed to be a validly married couple unless (the husband) comes forward and shows that a lawful Talaq has been issued,” the apex court had observed.

It had also stressed the need for a balanced approach while dealing with issues intersecting personal law and constitutional rights. The Supreme Court observed that courts should exercise minimal interference in religious matters unless such practices directly infringe upon fundamental or human rights.

“While respecting all religions, the first principle for a court should be to have the least interference in religious affairs, unless… constitutional rights or human rights” are impacted, the CJI Kant-led Bench had remarked.

In the main matter filed by journalist Benazeer Heena, the top court had referred the parties to mediation, noting an “urgent and dire necessity” to explore an amicable resolution, including a mutually acceptable dissolution of marriage.

Former Supreme Court judge Justice Kurian Joseph was appointed as the sole mediator, with a request to conclude the process within four weeks. Pending mediation, the CJI Kant-led Bench had directed that earlier talaq notices “shall remain in abeyance”.

Importantly, the Supreme Court had clarified in earlier proceedings that its interim orders staying specific talaq instances were based on the peculiar facts of those cases and did not amount to a final adjudication on the validity of the practices themselves.

The batch of petitions also raises broader issues, including the legality of divorce communicated through electronic modes such as email and messaging platforms, and seeks guidelines to safeguard the rights of affected women.