Decoding Demand To Ban 'Talaq-e-Hasan': How It Is Not the Same as Triple Talaq
A PIL has been filed in SC seeking a ban on Talaq-e-Hasan. BJP's Ashwini Upadhyay is representing the petitioner.
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On 20 June 2022, Benazir Heena woke up to an email she had long dreaded. “Notice of pronouncement of the third and final talaq,” the document attached to the email read. Her heart sank, but she wasn’t entirely taken by surprise; she was in fact anticipating this. In the last two months she had received two similar notices – one in April that sought to give her the ‘first talaq’ and another in May which was the ‘second talaq’. Unlike the final one, these two were sent by speed-post.
Initially, when she received the first notice through a lawyer representing her husband, Heena’s parents calmed her nerves saying that “Triple Talaq is already banned, so this means nothing.” But on reading the notice more closely, she realised it said that she is being divorced under what is called ‘Talaq-e-Hasan.’
Heena soon learnt that Talaq-e-Hasan – which is pronounced once a month over a period of three months – is very much a legal practice.
On 2 May, just nine days after receiving the first notice, she filed a PIL in the Supreme Court seeking a ban on the practice of Talaq-e-Hasan. She is being represented by lawyer and BJP leader Ashwini Upadhyay. On 16 August, the Supreme Court noted that the practice is "not so improper."
The Difference Between Triple Talaq and Talaq-e-Hasan
"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. I don't want this to become an agenda for any other reason," Justice Sanjay Kishan Kaul, the presiding judge on the case, remarked orally during the proceedings.
The verdict on the matter, however, is yet to be passed and the matter is listed again for 29 August.
Thirty-four-year-old Heena, who is a journalist at Republic Bharat, said she filed the petition because she doesn’t want others to go through what she endured. “I think the practice is against the basic principles enshrined in our Constitution,” Heena says. The petition argues that the Talaq-e-Hasan practice stands in contradiction to the Articles 14,15, 21, 25 of the Indian Constitution – all pertaining to equality and against discrimination.
Unlike Talaq-e-Biddat, commonly known as Triple Talaq, where the women are subjected to Talaq or divorce instantaneously, and in one go, the Talaq-e-Hasan is significantly different.
It requires a minimum of a month’s gap between the pronouncement of each Talaq, and the couple is supposed to try and mend bridges and reconcile in that period. If reconciliation is done before the third and final divorce, the earlier pronouncements are considered null and void.
“Talaq-e-Hasan is a Quran approved way of divorce with ample scope for rethink and reconciliation. Triple Talaq is a biddat (an undesirable innovation), not mentioned in the Quran. Triple Talaq is banned in many countries including many Muslim countries, while Talaq-e-Hasan is a legitimate and common practice of divorce in those countries,” says Ziya Us Salam, author of the book Till Talaq Do Us Part: Understanding Talaq, Triple Talaq and Khula.
“Islam wants stable marriage. Hence, divorce in haste is not recommended. At the same time, option of divorce is provided to avoid an unhappy marriage for a lifetime,” Salam adds.
In the second Talaq notice sent by Heena’s husband’s lawyer, it is written: “Now that after sufficiently considering his decision and after all efforts of mediation, reconciliation etc. put in by my client until now, being frustrated by you, my client has in continuation to pronouncement of the First and Second Revocable Talaq, further pronounced the Third and Final Talaq to you under Talaq-E-Hasan.”
Heena, however, claims that he did not try to get in touch with her or respond to her calls and messages ever since he gave the first Talaq.
Delhi High Court lawyer Nabeela Jamil said that Talaq-e-Hasan is a method of divorce for Muslim men. And that “there are other methods of Talaq for Muslim women.”
“Generally, the spouse that wants a divorce may not be the person who wants to initiate reconciliation and naturally may have already made up his mind before intimating the process of divorce. However, Islam stresses on reconciliation and so does the Indian law. In the case of Talaq-e-Hasan here, the wife has already been intimated of the husband's intention to pursue a talaq. Since, the reconciliation process is for both the parties, the burden of reconciliation should also lie on both the parties. And if it fails, because of whatever reasons, talaq attains finality,” Jameel said.
When One Partner Doesn't Want aDivorce
The SC bench, while noting that Talaq-e-Hasan is not the same as Triple Talaq had said on 16 August: “This is not triple talaq in that sense. Marriage being contractual in nature, you also have an option of khula. If two people cannot live together, we are also granting divorce on ground of irretrievable breakdown of marriage. Are you open to divorce by mutual consent if 'mehar' (gift given in cash or kind by groom to bride) is taken care of?”
But Heena says that she doesn’t want a khula (divorce initiated by the wife) or any other kind of divorce. Instead, she wants to reconcile with her husband.
“Yes, my marriage had a lot of issues. But I want to give it another chance, there should be some scope of improvement...He can’t just run away from his responsibilities like this,” says Heena.
Risk Of Politicisation
Besides Upadhyay, the other lawyer representing Heena is Pinky Anand, former Additional Solicitor General of India and also a BJP member.
Given the obvious risk of politicisation of the issue, many have raised eyebrows over Heena’s decision to choose these two lawyers to represent her case. But she defends her decision.
“I first went to Muslim advocates. They would all empathise with me but didn’t want to take on the case. So I had no other option,” Heena says.
“How does it matter to me which political party they are affiliated to? They are advocates at the end of the day. And I knew he (Upadhyay) was also actively involved in the Triple Talaq cases. So I knew he would hear my plight also,” she adds.
Triple Talaq was banned by the Supreme Court in a landmark verdict in 2017, following which the Modi government brought in a bill criminalising the practice with a 3-year jail term in 2019.
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