Should Civilised Society Allow This? Supreme Court Flags Concerns Over New Triple Talaq Case

The Supreme Court on Wednesday signalled the possibility of a constitutional re-evaluation of Talaq-e-Hasan, raising serious concerns about both the procedure and the wider social implications of allowing third-party involvement in a deeply personal matter such as divorce.

A Bench of Justices Surya Kant, Ujjal Bhuyan and N. Kotiswar Singh said the challenge could be placed before a five-judge Constitution Bench. The judges stressed that the issue was not about outlawing a religious practice but ensuring that such practices align with constitutional values. Both sides were directed to submit short memos outlining the specific legal questions involved and the classifications of talaq in Islamic law.

The immediate flashpoint arose from the growing trend of Muslim husbands authorising advocates or third parties to issue Talaq-e-Hasan notices on their behalf. The Bench questioned why a husband capable of consulting a lawyer could not communicate with his wife directly, calling the practice an affront to women’s dignity. “Should a civilised modern society allow this kind of practice?” Justice Surya Kant asked.

Under Talaq-e-Hasan, a husband pronounces “talaq” once every month for three months. If the couple does not resume cohabitation after the third pronouncement, the divorce becomes final. Reconciliation after the first or second declaration invalidates the process. The court had previously struck down instant triple talaq (Talaq-e-Biddat) as unconstitutional in 2017.

The petitioners include several Muslim women, among them journalist Benazeer Heena, who argued that despite her husband’s second marriage, she could not ascertain her marital status because the divorce notice was issued by a third party. She told the court she faced difficulty obtaining essential documents, such as those needed for her child’s school admission. The judges advised her to file a simple application and assured that the matter would be considered.

Justice Kant remarked that Heena’s presence underscored a deeper societal concern. “We have a journalist and a doctor in court today. But what about those whose voices go unheard in remote areas? Those who can speak must be ensured access to justice,” he said.

The Bench also directed that Heena’s former husband be present at the next hearing. This came after senior advocate M.R. Shamshad defended the authorisation procedure as a longstanding custom. The judges said that if talaq is invoked, the steps must be followed strictly and cannot be delegated to an advocate. “Tomorrow, what happens if a client disowns the advocate?” they asked.

Heena’s counsel, Rizwan Ahmed, added that she now faces the risk of being accused of polyandry because of discrepancies in signatures on the nikahnama and the talaq notice.

The Bench also allowed the All India Muslim Personal Law Board (AIMPLB) and the Samastha Kerala Jamiyyathul Ulama to intervene. It directed all parties – including advocate Ashwini Upadhyay – to clearly outline the scope of judicial review. The court has already sought responses from the NCW, NHRC, and NCPCR.

The judges emphasised that their concern was not limited to individual disputes. “The general public is affected. If there are glaringly discriminatory practices, the court must step in,” Justice Kant observed.