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Absence of dignity in divorce is the ground for challenging Talaq-E-Hasan, says petitioner before the Supreme Court

If my consent is taken for marriage, it should also be taken while divorcing me, says Nazreen Nisha, the petitioner who has challenged Talaq-E-Hasan before the Supreme Court. 

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RECENTLY, a public interest litigation was filed by Nazreen Nisha, a Mumbai-based woman, in the Supreme Court challenging the judicial validity of the practice of the talaq-e-hasan mode of divorce through Advocate-on-Record, Ashutosh Dubey, under Article 32 of the Constitution. Talaq-E-Hasan is a form of ‘triple talaq’ by which a Muslim man can divorce his wife by pronouncing ‘talaq’ at three separate intervals, marked by her menstrual cycle.

This petition comes five years after the Supreme Court, in Shayara Bano versus Union of India (2017), declared the practice of triple talaq as illegal, void and unconstitutional.

According to Nisha’s petition, talaq-e-hasan is a unilateral and extrajudicial form of talaq, and it is arbitrary and contrary to Articles 141521 and 25 of the Constitution. Nisha has also challenged, “all other forms of unilateral and extrajudicial Talaq.” Similar issues have been raised in Benazeer Heena versus Union of India & Ors. (2022), pending before the Supreme Court, and in another petition pending before the Delhi High Court.

Nisha has also prayed before the Supreme Court to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, void.

Both Nisha and Heena have sought directions from the Union Government to frame guidelines for gender and religion-neutral grounds of divorce, and uniform practices of divorce for the development of socially and economically downtrodden and marginalised women.

Nisha spoke to The Leaflet about her petition.

Edited excerpts from the interview:

Q: Are you a victim of talaq-e-hasan? Can you share your experience?

A: Yes, I am a victim of talaq-e-hasan. On July 4, I received a text message from my husband in which he gave me talaq notices twice in an instant. After I had received the text, I tried contacting him but he had already blocked all my contact for the last eight months. In fact, I even visited his house in person, but he refused to see or talk to me. Thereafter, I tried reaching out to the police, but I did not receive any help from them because they said that talaq-e-hasan is permitted in Sharia. I told them that the way I have been divorced is not the way this form of talaq is exercised. Still, no help came on my way.

Also read: In defence of ‘talaq-e-hasan’

Q: Why did your husband send such texts?

A: We have not been on talking terms for the last few months. I have mentioned the reasons in my petition. I still did not want to give up on my marriage, but he left me without any financial help. That was when I received the divorce notices from him.

When my consent is needed in the nikahnama (marriage contract), why was my consent not taken while divorcing me? I even tried to reconcile our issues, but he just decided to give me a unilateral divorce. I am a human being and I deserve some dignity! This is one of the most discriminatory practices against Muslim women.

Q: Why have you approached the Supreme Court? 

A: I have approached the Supreme Court because I have been given talaq without my consent. My husband did not discuss anything with me and gave me a divorce over text! I cannot express my agony in words. When my consent is needed in the nikahnama (marriage contract), why was my consent not taken while divorcing me? I even tried to reconcile our issues, but he just decided to give me a unilateral divorce. I am a human being and I deserve some dignity! This is one of the most discriminatory practices against Muslim women. So, I have not just challenged the divorce notices given to me, but also the overall unilateral and extrajudicial modes of divorce in the Quran.

If both husband and wife find it difficult to stay together, then they should part ways, but in a respectable manner. The Constitution gives equal rights to both men and women.

Q: You say that this form of divorce is unilateral and is only available to be exercised by Muslim men. But what about khula, which is only prescribed to women?

A: I do not disagree that Islam gives women the right to seek divorce through khula. But how many women choose to exercise that? Women are taught that once they are married, their home is the marital home. Call it fear or anything else, but a woman would rather suffer torture than end the marriage. That is the ground reality.

Also read: Muslim Women’s Right to Extra-Judicial Divorce

Q: If you request the court to make talaq-e-hasan unconstitutional, Muslim men’s right to divorce will be taken away. Is that what you want?

A: I only want that if both husband and wife find it difficult to stay together, then they should part ways, but in a respectable manner. The Constitution gives equal rights to both men and women. All I want is that they either part ways in a respectable manner, or the parties can approach the court for a divorce.

Q: Do you think the practice of talaq-e-hasan is saved by Article 25 of the Constitution?

A: I am not a lawyer but what I have been able to understand is that talaq-e-biddat (triple talaq) was declared a discriminatory practice against Muslim women. In the same manner, this should also be done away with, because this is also being misused.

The Leaflet