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Prima facie Talaq-E-Hasan not so improper, women have option of "Khula": SC

ANI | Updated: Aug 16, 2022 12:57 IST


New Delhi [India], August 16 (ANI): The Supreme Court on Thursday remarked that the practice of Talaq-e-Hasan, as per which a man can divorce his wife by pronouncing "talaq" once a month for three months, among Muslims for divorce is not prima facie improper and women have the option of "Khula" divorce.
A bench of Justices Sanjay Kishan Kaul and MM Sundresh also said that the case pending before the top court challenging the practice should not be used to further any agenda and posted the hearing on August 29.
"Prima facie this (Talaq-e-Hasan) is not so improper. Women also have an option. Khula is there. Prima facie I don't agree with petitioners. Let us see. I don't want this to become an agenda for any other reason," Justice Kaul observed during the hearing.
During the hearing, senior advocate Pinky Anand, appearing for the petitioner, submitted that though the apex court has declared triple talaq unconstitutional, it left the issue of Talaq-E-Hasan undecided.
"This is not Triple Talaq. You also have the option of 'Khula'. If two people cannot live together, we are granting divorce on the breakdown of the marriage. Are you open to divorce by mutual consent if Mehar is taken care of... Are you willing to go by consent on subject to appropriate Mehar?" Justice Kaul asked.
The plea was filed by journalist Benazeer Heena challenging the practice of Talaq-E-Hasan and said that notices have been sent to the woman.
The petition was filed in the top court seeking to declare that Talaq-E-Hasan and all other forms of Unilateral Extra-Judicial Talaq as unconstitutional and sought to issue direction to the Centre to frame guidelines for Gender Neutral Religion Neutral Uniform Grounds of Divorce and Uniform Procedure of Divorce for all.
In Talaq-E-Hasan, talaq is pronounced once a month, over a period of three months and if cohabitation does not resume during this period, the divorce gets formalised after the third utterance in the third month. However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled. The first and second utterances of talaq are deemed invalid.
The practice of Talaq-E-Hasan and other forms of unilateral extra-judicial talaq is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of the Islamic faith, it has said.

The plea filed by the woman said that "Many Islamic nations have restricted such practice, while it continues to vex the Indian society in general and Muslim women like the petitioner in particular."
The petitioner further submitted that the practice also wreaks havoc on the lives of many women and their children, especially those belonging to the weaker economic sections of society.
The plea sought direction to declare "Talaq-E-Hasan and all other forms of Unilateral Extra-Judicial Talaq" are void and unconstitutional.
As per the plea, the petitioner was married to a man as per Muslim rites and has a male child from wedlock. Petitioner claimed that her parents were compelled to give her dowry and later she was tortured for not getting a big dowry.
Petitioner also claimed that her husband and his family members tortured her physically-mentally not only after the marriage but also during the pregnancy which made her seriously ill.
When the petitioner's father refused to give dowry then her husband gave her Unilateral Extra-Judicial Talaq-E-Hasan through a lawyer, which is totally against Articles 14, 15, 21, 25 and UN Conventions, the petitioner's lawyer said.
She has also sought direction to direct and declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as void and unconstitutional for being violative of Articles 14, 15, 21, 25, in so far as it validates the practice of "Talaq-E-Hasan and other forms of unilateral extra-judicial talaq".
It also sought to declare the Dissolution of Muslim Marriages Act, 1939, void and unconstitutional for being violative of Articles 14, 15, 21, and 25 in so far as it fails to secure for Muslim women the protection from "Talaq-E-Hasan and other forms of unilateral extra-judicial talaq".
The petitioner also sought to issue directions to frame guidelines for Gender Neutral Religion Neutral Uniform Grounds of Divorce and Uniform Procedure of Divorce for all. (ANI)

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