[This Article has been authored by Priyal Jain, Student, National Law University Odisha.]

Introduction

Banazeer Heena, a young journalist, and a mother of a four-year-old child filed writ petition in the Supreme Court of India in 2022, challenging the constitutionality of the talaq-e-hasan. She challenged Section 2 of the Muslim Personal Law Application Act, 1937 and the Dissolution Of Muslim Marriages Act, 1939 on the ground that the continued recognition of talaq-e-hasan violates Articles 14, 15, 21, and 25 of the Constitution of India.

This article argues that talaq-e-hasan is unconstitutional because it institutionalises a unilateral, arbitrary, and gendered power that violates the basic tenets the Indian Constitution guarantees every citizen. It further argues that such a practice cannot claim protection under Article 25, as it neither constitutes an essential religious practice nor survives the internal limits imposed by fundamental rights.

In 2017, the Supreme Court in Shayara Bano vs. Union of India, had ruled against the constitutionality of the practice of Triple Talaq or talaq-e-biddat. The Constitutional Bench agreed with the petitioner that instantaneous divorce infringes the dignity of a woman. The Court further accepted the contention that a practice which infringes the guarantees of equality, non-discrimination, and personal liberty cannot seek protection under the right to freedom of religion. Talaq-e-Biddat allowed a Muslim man to divorce his wife unilaterally, instantaneously without the wife’s consent.

The Gendered Power of Talaq-e-Hasan

An extension to this form of divorce, which has been struck off as unconstitutional, is divorce by the way of talaq-e-hasan. It allows a Muslim man to unilaterally dissolve a marriage by pronouncing talaq once in three successive months, during the period of purity of the woman, without any requirement of reason, hearing, reconciliation or consent. The divorce becomes irrevocable upon the third pronouncement, but it remains revocable at the discretion of the husband until that stage.

This is manifest arbitrariness. The only difference between talaq-e-biddat and the talaq-e-hasan is the administration of divorce in instalments in the latter. A practice does not become constitutional merely because cruelty is administrated in a delayed fashion. And the mere introduction of time into an otherwise absolute power does not cure its constitutional infirmity.

The Illusion of Safeguards

At its core, talaq-e-hasan creates a floating, indeterminate marital status for the woman. Unlike judicial divorce or even statutorily regulated personal law divorce, talaq-e-hasan is oral, unregistered, unrecorded and leaves no authoritative proof of the fact, date, or finality of divorce.

As a result, the woman’s legal status oscillates between “married” in official records, “divorced” according to the husband’s assertion, and “potentially reconciled” at the husband’s discretion. This is not merely inconvenient, it is constitutionally disabling. This also makes talaq-e-hasan economically coercive. This is because discretionary power of the husband over the woman’s functional autonomy, affects the essential means of a dignified post-divorce life, through inheritance, maintenance, housing, and custody. When a woman lacks any financial support from her father’s house, she is left in a limbo depending upon her husband for survival during the persistence of the divorce. The undocumented nature of the divorce also gives the husband the whim to deny maintenance as and when he chooses to. The husband may even hold the deferred mehr ransom in such situations. This creates an asymmetry in bargaining power between the woman and the husband. Furthermore, due to the long period of the divorce, the woman has to depend upon her husband (and more often than not, in-laws) for the access to their shared household, creating an added risk of abuse and domestic violence.

Talaq-e-Hasan creates an illusion of safeguards, by the virtue of being revocable. However, there is no legal duty on the man to reconcile, provide reasons or fairly and procedurally divorce with consent of the woman. This kind of divorce is a structural replica of the unconstitutional, power imbalance between a man and a woman that had existed in another form of divorce i.e. talaq-e-biddat.

Talaq-e-Hasan also promotes structural discrimination. Women have no symmetrical power under Muslim personal law. Talaq-e-Hasan reduces a woman to a revocable marital subject. As the Constitution Bench observed in Shayara Bano, arbitrariness is antithetical to equality. A practice that allows one party to alter the legal status of another without reasons, safeguards, or recourse cannot survive Article 14 scrutiny merely because it unfolds slowly.

The question that must be answered while entertaining the constitutionality of talaq-e-hasan is not the time period over which a divorce occurs; but who controls it under what safeguards is it being done, and at whose course it is being done.

Constitutional Ground And Comparative Practice of Talaq-e-Hasan

There exists no constitutional ground for talaq-e-hasan. It is not an essential religious practice of Islam, since it is permissive and not obligatory, per the religion. The doctrine of talaq, in fact, was not introduced by Islam, as it is widely believed. It was a practice that Islam preferred and refined in its law. Under the ancient Hebraic Law, a husband could divorce his wife for any cause which made her disagreeable to him, and there were few or no checks to his arbitrary and capricious use of this power.[1]

Furthermore, talaq-e-hasan has even been reformed or altogether abolished in several Islamic jurisdictions. Many Islamic nations, including Pakistan, Morocco and Tunisia have mandated reconciliation procedures, state/judicial approval, and thereby penalise, arbitrary divorce.

An important comparison could be against Pakistan, an Islamic state. The Muslim Family Laws Ordinance, 1961 (MFLO) in Pakistan establishes an Arbitration Council (often called the “Arbitration Council/Union Council mechanism”) whose role is to attempt reconciliation and to advise or mediate before a talaq becomes final; failure to follow statutory steps may carry penalties under the statute. It also requires that any man who has pronounced talaq must, as soon as may be, give written notice to the Chairman of the local Union Council and supply a copy to the wife; the provision creates an administrative trigger for reconciliation and registration.

India’s continued recognition of this practice places it in a paradoxical position of reserving, a practice that even religious states have abandoned, constitutional secularism does not require a state to preserve religious injustice, especially when the reform aligns with religious consigns itself.

Conclusion

The constitutional infirmities of talaq-e-hasan do not arise from its religious origin, but from the absence of any legal procedure governing the exercise of divorce. These defects are neither abstract nor irremediable. They can be addressed through the introduction of minimal, rights-preserving procedural safeguards that discipline power without intruding upon matters of faith.

Firstly, legislature must mandate a written notice by husband to a specified public officer (union/gram panchayat/registrar), with copy to wife which creates timestamped proof of divorce. This creates a verifiable record of divorce and fixes temporal certainty, thereby addressing the economic disadvantage faced by the woman. Secondly, the law may provide for a brief, mandatory reconciliation period, facilitated through an institutionalised mediation or arbitration mechanism. This process must be time bound to avoid using this safeguard as a tool of coercion or delay. This would replace informality with accountability, discretion with procedure, and uncertainty with enforceable rights.

The constitutional question raised by talaq-e-hasan is about power. Not about tradition, but about control. The Constitution does not ask whether a practice is old or religious. It asks whether power is exercised with equality, dignity, and fairness. On that test, Talaq-e-Hasan fails.

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[1] Syed Ameer Ali, Mohammedan Law, Hind Publishing House, Allahabad, 5th edn., 2005 at 1551 – 54