The Supreme Court on Wednesday indicated that it may consider invalidating the practice of Talaq-e-Hasan, under which a Muslim husband can initiate divorce by uttering “talaq” once every month over a three-month period.
A Bench of Chief Justice-designate Justice Surya Kant, Justice Ujjal Bhuyan, and Justice N. Kotiswar Singh observed that the issue may warrant examination by a larger five-judge Constitution Bench. The judges asked the council to prepare a brief note outlining the principal constitutional questions that would arise.
“Once you give us a brief note, we will consider the desirability of referring the matter to a 5-judge bench. Give us broadly the questions that may arise. Then we will see how they are predominantly legal in nature that the court must resolve,” the Bench said.
Justice Kant remarked that the practice impacts society beyond the individual parties involved and may require judicial scrutiny. “Society at large is involved. Some remedial measures have to be taken. If there are gross discriminatory practices, then the court has to interfere,” he observed.
The judge questioned how a practice undermining women’s dignity could continue in modern India.
“What kind of thing is this? How are you promoting this in 2025? Whatever the best religious practice we follow, is this what you allow? Is this how the dignity of a woman is upheld? Should a civilised society allow this kind of practice?” Justice Kant asked.
The matter relates to a 2022 PIL by journalist Benazeer Heena, seeking a declaration that Talaq-e-Hasan violates Articles 14, 15, 21, and 25, and asks for gender- and religion-neutral divorce procedures.
Benazeer Heena’s husband had sent her a Talaq-e-Hasan notice through a lawyer after her family allegedly refused to pay dowry. She has also alleged harassment by her husband and in-laws and has tried to lodge complaints with the Delhi Commission for Women and the police.
During the hearing, Senior Advocate M.R. Shamshad, appearing for the husband, argued that appointing an authorised person to issue the talaq notice is an accepted practice. But Justice Kant questioned the necessity of intermediaries: “If talaq is to take place as per religious practice, then the entire procedure has to be followed as it is prescribed… We will call (the husband) to Court.”
Counsel for Heena explained that the manner in which the divorce notice was sent has placed her in a difficult position.
“The problem started with the schools where I wanted to get my child admitted. Everywhere I said I was a divorcee, my papers were not accepted. Admission was rejected. I told the father has moved on, married again. I don’t know the technicalities.”
The Court asked her to file a detailed application and directed that the husband appear before it at the next hearing. It also asked him to strictly adhere to the prescribed process under personal law.
Justice Kant noted that Heena, being a journalist, had the means and access to reach the Supreme Court, unlike many other affected women. “Today, we have a journalist before us. What about those unheard voices living in remote areas?” he said.
The petition cites the Supreme Court’s ruling in an earlier Prakash v. Phulavati case to argue that personal law practices concerning marriage and inheritance must evolve with constitutional values. The plea terms Talaq-e-Hasan a “unilateral extra-judicial talaq”, asserting that its continuation is inconsistent with human rights and gender equality and is not an essential Islamic practice.
In August 2022, a different Bench (Justices Sanjay Kishan Kaul and M.M. Sundresh) had observed that the practice did not appear “prima facie improper”, cautioning that the litigation should not be used to advance ideological agendas.
The matter will be taken up again on November 26, next Wednesday.