New Delhi: The Supreme Court Friday sought responses from the Centre and others on a plea seeking a direction to frame and implement uniform procedural safeguards and guidelines governing all forms of ‘talaq’ (divorce) under Muslim personal law.
A bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi was told by the counsel appearing for the petitioner that they have also challenged the validity of ‘Talaq-e-Hasan’.
‘Talaq-e-Hasan’ is a form of divorce among Muslims where a man can dissolve a marriage by pronouncing the word ‘talaq’ once every month over a three-month period.
The bench tagged the plea with a separate pending petition filed by a Muslim woman, who has challenged the validity of ‘Talaq-e-Hasan’ given by her husband.
The fresh plea has sought a direction to the authorities to declare ‘Talaq-e-Hasan’ and other forms of unilateral extra-judicial ‘talaq’ an evil that needs to be banned.
It sought a direction to the authorities to provide, in a retrospective and continuing manner, adequate economic and social protection measures for divorced women and their children affected by arbitrary forms of ‘talaq’.
It also sought a direction to the Centre to “frame and implement uniform procedural safeguards and legally enforceable guidelines governing all forms of ‘talaq’/divorce under Muslim personal law, so as to ensure fairness, reconciliation, transparency and protection of the fundamental rights of women guaranteed under Articles 14, 15 and 21 of the Constitution”.
The plea has sought a direction to the Centre to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional insofar as it seeks to recognise and validate ‘Talaq-e-Hasan’ as a valid form of divorce.
It also sought a direction to the Centre to frame comprehensive, gender-just and religion-neutral procedural safeguards governing dissolution of marriage, including divorce under personal laws, in conformity with Articles 14, 15 and 21 of the Constitution.
While Article 14 pertains to equality before law, Article 15 deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 pertains to protection of life and personal liberty.
The plea has sought to declare that “absence of statutory safeguards regulating polygamy under Muslim personal law, insofar as it permits a Muslim man to contract multiple marriages without ensuring equality, dignity, informed consent, financial security and constitutional protection to the existing wife/wives, is arbitrary, discriminatory and violative of Articles 14, 15 and 21 of the Constitution”.
It also sought a declaration that contracting a subsequent marriage without the free, prior and informed consent of the existing spouse, by concealing or suppressing such intention, is arbitrary and unconstitutional.
Under ‘Talaq-e-Hasan’, a divorce gets formalised after the third utterance of the word ‘talaq’ in the third month if cohabitation has not resumed during this period.
However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled.
In 2017, the top court declared triple ‘talaq’, also a form of divorce prevalent among the Muslim community, as unconstitutional after finding it to be arbitrary and violative of the fundamental rights of women.
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