A Supreme Court bench has raised serious questions about the legality and societal consequences of Talaq-e-Hasan, particularly criticising the growing practice of husbands issuing divorce notices through lawyers or third parties. The judges indicated that the matter may soon be placed before a five-judge Constitution Bench for a deeper constitutional review, stressing that the objective is not to invalidate a religious tradition but to ensure that personal laws comply with constitutional values.
The bench, comprising Justices Surya Kant, Ujjal Bhuyan, and N. Kotiswar Singh, stated that all parties must submit written notes detailing the different forms of talaq in Islamic law and the core constitutional questions that require adjudication.
The court’s immediate concern centred on Muslim husbands delegating the pronouncement of Talaq-e-Hasan to advocates or other individuals. The judges described this practice as demeaning to women and questioned why a husband who has access to legal assistance cannot directly communicate such a personal decision to his wife. Justice Kant openly asked whether such a practice should be acceptable in a modern, civilised society.
Talaq-e-Hasan consists of the husband pronouncing “talaq” once a month for three months. The divorce becomes final only if he repeats the pronouncement twice more without reconciliation taking place. If the couple resumes cohabitation after the first or second pronouncement, the process is automatically nullified. This form of talaq has come under scrutiny, especially after the Supreme Court’s 2017 judgment that struck down instant Triple Talaq as unconstitutional.
The current petitions have been filed by Muslim women, including journalist Benazeer Heena. She told the court that she received a talaq notice issued by a lawyer, which left her unable to prove her marital status while her husband remarried. She explained that she was unable to obtain essential documentation, even those required for her child’s school admission. The bench asked her to file a simple application and assured her that it would look into the matter.
Justice Kant remarked that Heena’s presence in court highlighted a much larger issue. If educated women such as journalists and doctors must struggle to access justice, the situation is far graver for women in remote or marginalised communities whose voices may never reach the courtroom.
Senior advocate M. R. Shamshad, representing Heena’s former husband, argued that issuing notices through authorised representatives is a long-standing custom. The bench responded by directing the husband to appear personally at the next hearing and stressed that talaq must be invoked strictly according to the prescribed procedure, not outsourced through an advocate. The judges also raised concerns about the risk of husbands later disowning notices issued through lawyers.
Heena’s lawyer, Rizwan Ahmed, added that mismatched signatures on the talaq notice and the nikahnama could expose his client to accusations of polyandry, further complicating her legal status.
The bench allowed the All India Muslim Personal Law Board and the Samastha Kerala Jamiyyathul Ulama to intervene in the matter. It also directed all parties — including advocate Ashwini Upadhyay — to clearly outline how far judicial review can extend in such personal-law issues. The court has already sought opinions from the National Commission for Women, the National Human Rights Commission, and the National Commission for Protection of Child Rights.
For the judges, the issue goes well beyond individual grievances. Justice Kant noted that if a practice is fundamentally discriminatory and affects society at large, the court has a constitutional duty to step in and address it.
