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Prima facie Talaq-E-Hasan not so improper, women too have option of “Khula”: SC

New Delhi: The Supreme Court on Thursday observed that the practice of talaq-e-hasan among Muslims, under which a man can divorce his wife by pronouncing “talaq” once a month for three consecutive months, is not prima facie improper as women have the option of “khula” divorce.

Justice Sanjay Kishan Kaul heading a bench also comprising Justice M.M. Sundresh also said that the case pending before the top court challenging the practice of talaq-e-hasan should not be used to further any agenda and posted the hearing on August 29.

“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. Let us see. I don’t want this to become an agenda for any other reason,” Justice Kaul observed in the course of the hearing.

Senior advocate Pinky Anand appearing for the petitioner Benazeer Heena – a journalist – told the court that though the top court had declared instant triple talaq unconstitutional, it left the issue of talaq-e-hasan undecided.

“This is not triple talaq. You also have an option of ‘khula’. If two people cannot live together, we are granting divorce on the breakdown of marriage. Are you open to divorce by mutual consent if ‘mehar’ is taken care of… Are you willing to go by consent, subject to appropriate ‘mehar’,” Justice Kaul asked the petitioner Heena.

Heena has sought a decorrelation that talaq-e-hasan and all other forms of unilateral extra-judicial talaqs as unconstitutional. She has also sought direction to the Centre to frame guidelines for gender neutral, religion neutral, uniform grounds of divorce and uniform procedure of divorce for all.

In talaq-e-hasan, talaq is pronounced once a month, over a period of three months in one go and if cohabitation, between estranged couple, does not take place during this period, the divorce gets formalised after the third pronouncement of talaq in the third month.

However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled burying the bitterness between them. In such a situation of reconciliation, the first and second utterances of talaq are deemed invalid.

The practice of talaq-e-hasan and other forms of unilateral extra-judicial talaq is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of the Islamic faith, says the petition.

The plea says that “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.” The petitioner contended that the practice also wreaked havoc on the lives of many women and their children, especially those belonging to the economically weaker sections of society.

The petitioner was married to a man as per Muslim practices and has a male child from wedlock. Petitioner claimed that her parents were compelled to give dowry and later she was tortured for not getting a enough dowry.

Petitioner has also also claimed that her husband and his family members tortured her physically and mentally not only after the marriage but also during the pregnancy because of which she became seriously ill.

When the petitioner’s father refused to give any more dowry, her husband took recourse to talaq-e-hasan and sent notice through a lawyer, which is totally against Articles 14, 15, 21, 25 and UN Conventions, the petitioner’s lawyer said.

She has also sought declaration that the Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as void and unconstitutional for being violative of Articles 14, 15, 21, 25, in so far as it validates the practice of “Talaq-E-Hasan and other forms of unilateral extra-judicial talaq”.

It also sought deceleration that the Dissolution of Muslim Marriages Act, 1939, is void and unconstitutional for being violative of Articles 14, 15, 21, and 25 in so far as it fails to secure for Muslim women the protection from “talaq-e-hasan and other forms of unilateral extra-judicial talaq”.