Talaq-E-Hasan: A Recent Challenge Before SC
Talaq-e-hasan: A recent challenge before SC
(Benazeer Heena vs Union of India & Ors)
Three types of divorce are permitted under Islamic law. Talaq, in its simplest
form, is a divorce granted by the husband at his own desire."Khula" is a form of
divorce in which the wife initiates the process. By mutual consent,"mubaraat" is
the third type of divorce. "Talaq-e-ahsan", "Talaq-e-hasan", and "Talaq-e-bidat"
are all three types of talaq. "Talaq-e-ahsan" and "talaq-e-hasan," are assumed
the most logical forms of divorce, as sanctioned by the Quran and 'hadith,'
Recently a Public Interest Litigation was filed before the Apex Court by a woman
journalist challenging the divorce through "Talaq-e-ahsan(a Muslim man can
divorce his wife by using the word talaq once a month for three months)".
Via Advocate-on-Record, Ashwani Kumar Dubey, journalist Benazeer Heena has
launched a PIL arguing that the practice is unlawful because it is arbitrary and
unreasonable, as well as violating Fundamental Rights under Articles 14, 15, 21
and 25 of the Indian Constitution. The PIL further seeks for guidelines on a
procedure as well as grounds for divorce that are gender and religious neutral.
When the petitioner's parents refused to give dowry, her husband ostensibly
divorced her by forwarding a "unilateral extra-judicial Talaq-e-Hasan" notice
through an advocate. The petitioner added that she had also made a complaint to
the Delhi Commission for Women and filed a First Information Report about her
husband and his family's treatment of her. Police allegedly assured her it was
legal under Sharia law, despite the fact that it is not.
Marriage and inheritance rules are not part of personal codes, according to the
argument in the petition, which referenced the Supreme Court ruling in "Prakash
vs Phulavati". As a result, it is contended, a PIL challenging a personal law
practise aimed at protecting Muslim women's rights can be maintained.
Demanded that it be outlawed as Unilateral Extra-Judicial Talaq since it
conflicts with human rights and equality and is not required in the Islamic
The petitioner also pela that, this has been outlawed in many Muslim countries,
yet the Petitioner and other Muslim women in India continue to be afflicted by
this practise. Many women and children, particularly those from economically
disadvantaged backgrounds, suffer as a result of this practice.
It is argued that the practise is being abused, and therefore it is also
discriminatory because it can only be used by men. The petitioner asserted that
Article 25's protection of religious liberty, including freedom of religion,
does not apply in its entirety.
The petitioner has also submitted the below mentioned pleas. Articles - 14, 15,
21, 25, and 28 of the Constitution of India expressly forbid the practise of "Talaq-e
Hasan and all other types of unilateral extra-judicial talaq." Divorce
guidelines should be drawn up by the Direct Centre for Gender Neutral, Religion
Neutral, Uniform Grounds of Divorce and Uniform Procedure for All.
Articles 14, 15, 21, and 25 of the Indian Constitution prohibit "Talaq-E-Hasan
and other kinds of unilateral extra-judicial talaq," a practise that is illegal
under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
If you don't protect women from "Talaq-E-Hasan and other kinds of unilateral
extrajudicial talaq," then the Dissolution of Muslim Marriages Act, 1939, is
void and unconstitutional under Articles 14, 15, 21, and 25.
Throughout history, religion served as the primary criterion by which people
judged their own conduct. As enlightenment dawned, religion was replaced by
reason or logic. Every one of them claims to be the best way for mankind's
progress since then. The genuine beneficiaries of welfare are those who combine
these two factors.
Written By: Shashwata Sahu, Advocate - LL.M., KIIT School of Law
Law Article in India
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