The Supreme Court of India has raised significant questions about the practice of Talaq-e-Hasan, a form of Islamic divorce, asking whether it should be permitted in a modern, civilized society. This scrutiny comes during the hearing of a Public Interest Litigation (PIL) that challenges the constitutional validity of the custom.
What is Talaq-e-Hasan and its Legal Standing?
The PIL was filed by journalist Benazeer Heena, who argued that the practice is "irrational, arbitrary and violative" of several constitutional provisions. To understand the legal nuances, The Indian Express consulted Advocate Misbah Solkar. According to Solkar, Talaq-e-Hasan is a revocable form of divorce in Islam with roots in the Quran. Unlike the now-unconstitutional triple talaq, or Talaq-e-Biddat, it involves a more protracted process.
The procedure requires a husband to pronounce talaq once a month over three consecutive menstrual cycles of the wife. This extended timeline, often referred to as a "cooling-off period," is designed to allow for the possibility of reconciliation between the couple. This method is recognized as a valid form of divorce under Muslim personal law in India.
Can Talaq-e-Hasan Be Pronounced via WhatsApp?
A critical question in the digital age is whether such a divorce can be declared through electronic means like WhatsApp or text message. Advocate Solkar provides a clear and firm answer: "Absolutely not." She emphasizes that pronouncing Talaq-e-Hasan through such channels is against Sharia law and is not considered a valid procedure. This includes sending the declaration through a third party who is not involved in the divorce.
Solkar states that such actions are legally unsound and represent a misuse of the practice, turning it into a matter of convenience for the man, which should not be the case.
Protection of Women's Rights and Judicial Response
When followed correctly, does Talaq-e-Hasan safeguard the rights of Muslim women? Advocate Solkar believes it does, especially when contrasted with the instantaneous and irrevocable nature of triple talaq. The revocable nature and the built-in waiting period are key protective features. They provide both parties an opportunity to reconcile, benefiting the woman as well as the man.
Solkar notes that the Indian judiciary has handled cases involving Talaq-e-Hasan fairly. The courts have been proactive in understanding women's rights and ensuring they are protected, irrespective of religious personal laws. She points out that India's diverse cultural landscape, with centuries-old traditions, can create friction in modern society, making it essential for the Constitution to intervene and protect individual rights while also respecting deeply rooted personal laws.
Furthermore, Muslim personal law provides avenues for women to initiate divorce through "khula." In a khula, a woman can seek a divorce without having to issue multiple notices or wait for a prolonged reconciliation period, granting her significant agency.
Since the Supreme Court declared Talaq-e-Biddat unconstitutional in 2017, the prevalence of Talaq-e-Hasan and Talaq-e-Ahsan (a single pronouncement) has become more common. Solkar concludes that women now feel more secure, as the unscrupulous misuse of instant divorce has been curtailed, forcing a return to the more deliberate and thoughtful procedures originally intended by Islamic law.
