Institute of Legal and Management Studies

In a batch of petitions challenging constitutionality of 'Talaq-e-Hasan', a form of divorce under Muslim law through which a man can separate from his wife by pronouncing "talaq" once a month for three months, the Supreme Court yesterday expressed disinclination to entertain any opposition on the basis of maintainability and/or locus of the petitioners.

"Maintainability and locus can't be the issues in these matters. There are aggrieved persons before us", the Court said, in response to Senior Advocate MR Shamshad's submission regarding the majority opinion in Shayara Bano on the interpretation of "law" under Article 13 of the Constitution and the Court's jurisdiction.

A bench of Justices Surya Kant and Joymalya Bagchi was seized of 9 petitions related to the issue. Listing the matter in November, it called for the responses of National Commission for Women, National Human Rights Commission and National Commission for Protection of Child Rights.

Advocate Ashwani Kumar Dubey, for petitioners, mentioned during the hearing that substantial arguments on the issue were raised at the time of hearing of triple talaq case (where Court invalidated talaq-e-biddat). Justice Kant however said that the Court would hear the instant cases independently.

Notably, the bench also permitted any material including authoritative books and/or scriptures to be produced in support of arguments. It further allowed all intervention applications listed today.

To recap, the lead petition listed before the Court was filed by journalist Benazeer Heena, claiming that her husband sent her the first notice of talaq through a speed post on April 19. The second and third notices were received in the subsequent months.

The petitioner argues that the practice is discriminatory since only men can exercise the same and seeks a declaration that the practice is unconstitutional as it is arbitrary and violative of Articles 14, 15, 21 and 25 of the Constitution. According to her, it is not an essential practice of the Islamic faith.

One of the petitions has been filed by cricketer Mohammed Shami's wife-Hasin Jahan.

In August, 2022, a bench of Justices Sanjay Kishan Kaul and MM Sundresh made a prima facie observation that talaq-e-hasan is "not so improper". It was noted that Muslim women have the option of seeking divorce through "khula". "Prima facie this (Talaq-e-Hasan) is not so improper. Women also have an option. Khula is there. Prima facie I don't agree with petitioners. I don't want this to become an agenda for any other reason", Justice Kaul, the presiding judge of the bench, orally remarked.

Case Title: BENAZEER HEENA Versus UNION OF INDIA AND ORS., W.P.(C) No. 348/2022