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Talaq-E-Hasan: A Recent Challenge Before SC

Talaq-e-hasan: A recent challenge before SC
(Benazeer Heena vs Union of India & Ors)
Three types of divorce are permitted under Islamic law. Talaq, in its simplest form, is a divorce granted by the husband at his own desire."Khula" is a form of divorce in which the wife initiates the process. By mutual consent,"mubaraat" is the third type of divorce. "Talaq-e-ahsan", "Talaq-e-hasan", and "Talaq-e-bidat" are all three types of talaq. "Talaq-e-ahsan" and "talaq-e-hasan," are assumed the most logical forms of divorce, as sanctioned by the Quran and 'hadith,'

Recently a Public Interest Litigation was filed before the Apex Court by a woman journalist challenging the divorce through "Talaq-e-ahsan(a Muslim man can divorce his wife by using the word talaq once a month for three months)".

Via Advocate-on-Record, Ashwani Kumar Dubey, journalist Benazeer Heena has launched a PIL arguing that the practice is unlawful because it is arbitrary and unreasonable, as well as violating Fundamental Rights under Articles 14, 15, 21 and 25 of the Indian Constitution. The PIL further seeks for guidelines on a procedure as well as grounds for divorce that are gender and religious neutral.

When the petitioner's parents refused to give dowry, her husband ostensibly divorced her by forwarding a "unilateral extra-judicial Talaq-e-Hasan" notice through an advocate. The petitioner added that she had also made a complaint to the Delhi Commission for Women and filed a First Information Report about her husband and his family's treatment of her. Police allegedly assured her it was legal under Sharia law, despite the fact that it is not.

Marriage and inheritance rules are not part of personal codes, according to the argument in the petition, which referenced the Supreme Court ruling in "Prakash vs Phulavati". As a result, it is contended, a PIL challenging a personal law practise aimed at protecting Muslim women's rights can be maintained.

Demanded that it be outlawed as Unilateral Extra-Judicial Talaq since it conflicts with human rights and equality and is not required in the Islamic religion.

The petitioner also pela that, this has been outlawed in many Muslim countries, yet the Petitioner and other Muslim women in India continue to be afflicted by this practise. Many women and children, particularly those from economically disadvantaged backgrounds, suffer as a result of this practice.

It is argued that the practise is being abused, and therefore it is also discriminatory because it can only be used by men. The petitioner asserted that Article 25's protection of religious liberty, including freedom of religion, does not apply in its entirety.

The petitioner has also submitted the below mentioned pleas. Articles - 14, 15, 21, 25, and 28 of the Constitution of India expressly forbid the practise of "Talaq-e Hasan and all other types of unilateral extra-judicial talaq." Divorce guidelines should be drawn up by the Direct Centre for Gender Neutral, Religion Neutral, Uniform Grounds of Divorce and Uniform Procedure for All.

Articles 14, 15, 21, and 25 of the Indian Constitution prohibit "Talaq-E-Hasan and other kinds of unilateral extra-judicial talaq," a practise that is illegal under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.

If you don't protect women from "Talaq-E-Hasan and other kinds of unilateral extrajudicial talaq," then the Dissolution of Muslim Marriages Act, 1939, is void and unconstitutional under Articles 14, 15, 21, and 25.

Throughout history, religion served as the primary criterion by which people judged their own conduct. As enlightenment dawned, religion was replaced by reason or logic. Every one of them claims to be the best way for mankind's progress since then. The genuine beneficiaries of welfare are those who combine these two factors.

Written By: Shashwata Sahu, Advocate - LL.M., KIIT School of Law

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