In defence of ‘talaq-e-hasan’

The contentions raised in the plea challenging the constitutional legitimacy of divorce via talaq-e-hasan are themselves constitutionally unreasoned and the ramifications of striking down the practice are detrimental, not only to Muslim men, but also to the very mechanism of resorting to extra-judicial divorce.

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A plea was recently filed before the Delhi High Court challenging the constitutional legitimacy of divorce sought by way of 'Talaq-e-Hasan' on the grounds of being an unconstitutional, arbitrary, irrational and unilateral divorce mechanism that dents the constitutional mandate of Articles 14, 15, 21, and 25 of the Constitution. Fundamentally, talaq-e-hasan, whose chief source is claimed to be the Quran, is an extra-judicial practice by which a Muslim man can divorce his wife by saying the word 'talaq' thrice over a period of three months, where the pronunciation usually happens with a gap of at least one month or one menstrual cycle.

In contrast to the constitutionally forbidden practice of talaq-e-biddat or 'triple talaq', where a man is allowed to divorce his wife in one go leading to an instant end of the marriage with no scope of reconciliation, talaq-e-hasan does not subscribe to an instant end-of-marriage divorce mechanism and allows a three-month room for reconciliation.

While a five-judge Constitution bench of the Supreme Court, in Shayaro Bano versus Union of India (2017) categorically struck down the practice of triple talaq as being void, illegal and unconstitutional, the practice of talaq-e-hasan still remains a widely subscribed form of divorce available to a Muslim man.

Also read: What the Triple Talaq law means to the lives of Muslim Women

Essentially, the challenge to the constitutional validity of talaq-e-hasan on the touchstone of the Constitution rests primarily on its unilateral nature, which is claimed to bring the practice in conflict with the respective conventions of Articles 14, 15, and 21 of the Constitution. However, a concentrated reading of Muslim personal law in light of the Quran and a few judicial precedents will highlight the fact that the above contention suffers from a gross misconception of facts, and a rather flawed understanding of the Constitution, thereby making the plea liable to be dismissed.

Interpreting equality

The petitioners have contended that the retention of talaq-e-hasan as a form of divorce, tramples the mandates of Articles 14 and 15 on the ground that the practice is, inter alia, unilateral. This contention treads on thin constitutional ice as the Quran prescribes a separate divorce mechanism for both Muslim men and women. While talaq-e-hasan is a form of divorce available to a Muslim man, 'Khula' is a divorce mechanism available solely to Muslim women.

Textually, khula or 'redemption', means laying down by a husband, his right and authority over the wife. It is a form of divorce with the consent and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marital tie. Characteristically, khula is also an extra-judicial and unilateral form of divorce available solely to Muslim women.

Last year, a division bench of the Kerala High Court addressed the issue of the unilateral nature of talaq by shedding light on the practice of khula as "the form of divorce conferred upon wife similar to talaq conferred upon the husband." (emphasis supplied) Khula, which is also an extra-judicial and unilateral form of divorce treads on similar characteristic lines as talaq-e-hasan as far as it gives an absolute and unconditional right to the Muslim wife to invoke a divorce without any dependence on the assent or consent of the husband. This, essentially, invalidates the challenge based on Articles 14 and 15 as a Muslim wife is also entitled under the Quran to an extra-judicial, unilateral, and absolute divorce mechanism, as is available to the Muslim husband under talaq-e-hasan. 

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

Transgression of Article 25

Time and again, it has been maintained that courts must take religion as it finds it, regardless of how unusual the claims are. It is not for courts to act as a regulatory oversight, and disentitle traditional custodians and subjects from further custodial engagement.

At this juncture, it is pertinent to bring to light the dictum of the Supreme Court in Shayara Bano, in which the Constitution bench, while rejecting the contention that the Muslim Personal (Shariat) Application Act, 1937 ceased to be 'personal law', observed,

"'Shariat' cannot be required to satisfy the provisions contained in Part III – Fundamental Rights, of the Constitution, applicable to State actions, in terms of Article 13 of the Constitution." (emphasis supplied)

Earlier this month, another division bench of the Kerala High Court in C. Abdul Aziz & Ors. versus Chembukandy Safiya & Ors., while refusing a Muslim woman guardianship of her minor child's property, held:

"…as the Shariat Act has been held to be not a State legislation, it cannot be tested on the anvil of Articles 14 or Article 15 of the Constitution as argued on behalf of the appellants." (emphasis supplied)

Since the very enactment of the Constitution, personal law has been accorded constitutional protection through the mandate of Article 25 and is essentially given the stature of a fundamental right. While there exist other judicial forms of divorce, the striking down of talaq-e-hasan by the court would strike at the very heart of a Muslim man's right to resort to extra-judicial divorce as per his religion.

Also read: Emerging challenges on women and law in India – III: challenges for women in family law

In contestation with the Puttaswamy dictum

Additionally, the denial of a Muslim man's right to resort to extra-judicial divorce as per his religion will subsequently snowball into the violation of his right to freely practice and propagate his religion under Article 25 and his right to privacy under Article 21 as envisaged in the Supreme Court's nine-judge Constitution bench judgment in Justice K. S. Puttaswamy (Retd.) & Anr. versus Union Of India & Ors. (2017).

It is significant to chalk out two pertinent observations made by Justice J. Chelameshwar who, in his concurring opinion, explained the contours of the right to privacy as a fundamental right and its interplay with religious autonomy. Firstly, he maintained that while the right to freely profess, practice and propagate religion may be a facet of free speech and expression guaranteed under Article 19(1)(a), "the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of 'purely private thought' process and is an aspect of liberty." Secondly, he added that privacy is essential to the exercise of freedom of conscience and the right to profess, practice, and propagate religion vide Article 25.

A combined reading of the two observations clearly posits that the denial of a Muslim man his right to divorce through talaq-e-hasan, which is covered under the protective umbrella of Article 25 and is immune to judicial review, will not only dent his fundamental right under Article 25 and his right to privacy under Article 21, but will also be understood as antithetical to the Puttaswamy dictum.

Also read: Seminal decisions of the Supreme Court in Triple Talaq and Privacy point towards the way forward

It is evident that the contentions raised in the plea are themselves constitutionally unreasoned and the ramifications of striking down the practice are detrimental, not only to Muslim men, but also to the very mechanism of resorting to extra-judicial divorce.

With the court listing the matter on August 18 for further hearing, what climate the litigation on the constitutionality of talaq-e-hasan will adopt is only for time to tell.