Senior advocate Pinky Anand, appearing for the petitioner Benazeer Heena, submitted that though the top court has declared Triple Talaq unconstitutional, it left the issue of Talaq-e-Hasan undecided.
Supreme Court in one of its statements noted that the practice of Talaq-e-Hasan is not the same as Triple Talaq. The apex court has said the practice of divorce in Muslims through Talaq-e-Hasan - which is pronounced once a month over a period of three months - is not akin to triple talaq and the women also have an option of khula.
In Islam, a man can take "talaq", while a woman can part ways with her husband through "khula".
A bench of Justices SK Kaul and MM Sundresh said if husband and wife cannot live together, it can also grant a divorce on the ground of irretrievable breakdown under Article 142 of the Constitution.
The top court was hearing a plea seeking to declare Talaq-e-Hasan and all other forms of "unilateral extra-judicial talaq as void and unconstitutional", claiming they were "arbitrary, irrational, and violated fundamental rights".
Senior advocate Pinky Anand, appearing for the petitioner Benazeer Heena, submitted that though the top court has declared Triple Talaq unconstitutional, it left the issue of Talaq-e-Hasan undecided.
The petition, filed by Ghaziabad resident Heena, who claimed to be a victim of Talaq-E-Hasan, also sought a direction to the Centre to frame guidelines for neutral and uniform grounds of divorce and procedure for all citizens.
Talaq-e-Hasan
A Muslim man can divorce his wife by uttering talaq once every three months. And this practice is called Talaq-e-Hasan. That is, if a man tells talaq once a month, and repeats the word for three months, the marriage is considered void. In Talaq-e-Hasan, divorce gets formalised after the third utterance in the third month if cohabitation is not resumed during this period. However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled and the first or second utterances of talaq are deemed invalid.
Thereby, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified).
The husband and wife cannot marry after the third ‘iddat’ (third month of abstinence). The woman has to marry another man and after their marriage is dissolved, then only the woman can remarry her former husband.
Triple Talaq
Triple Talaq, also known as Talaq-e-Biddat, is the most controversial form of divorce practice among Muslims. In this, talaq is uttered thrice consecutively and there is an instant divorce which is irrevocable.
Even amongst Muslims Talaq-e-Biddat, is considered irregular. It is said that there is no mention of Talaq-e-Biddat in the Quran and it was only introduced after the demise of Prophet Muhammad.
Khula and Mubaraat are two other types of divorce practised by Muslim women. While Khula is at the instance of the wife Mubaraat is divorced by mutual consent.
The main distinction between a Khula and Mubaraat is that in the former the aversion is on the side of the wife and she desires a separation but in the later the aversion is mutual and both sides desire separation.
Another type of divorce under Islam is Talaq-e-Ahsan, which is a single pronouncement of talaq by the husband, followed by a period of iddat. The period of 'iddat' is ninety days or three menstrual cycles or three lunar months.
If the couple resumes their marital ties within these three months, then the divorce can be revoked.
The top court asked Anand to seek instructions on whether in view of the allegation of the irrevocable breakdown of marriage, would the petitioner be willing for settlement by process of divorce on the amount being paid over and above 'mehar'.
It also told the petitioner that dissolution of marriage is also possible without the intervention of this court through 'mubaraat' and asked her counsel to seek instructions.
The top court will now hear the matter on August 29.
(with inputs from agencies)