On May 2, 2022, just nine days after receiving the first “notice of pronouncement of talaq”, 34-year-old Benazir Heena, a journalist at Republic Bharat, filed a PIL in the Supreme Court seeking a ban on the practice of Talaq-e-Hasan. Subsequently, Heena received two more such notices. She received a document of the third and final notice of talaq attached to an email on June 20, 2022.

While the Supreme Court is yet to give a verdict on the petition, Justice Sanjay Kishan Kaul, the presiding judge on the case, expressed his reservation over the contention of the petitioner in an oral remark during the proceedings. He said, “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.”

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Let’s understand what talaq is in the Islamic perspective and the procedure in light of Islamic jurisprudence.

Marriage, in Islam, is a social contract while divorce is a way to end the contract as a last resort when both parties find it too difficult to continue the marital relationship. Islam wants the contract to remain stable so that husband and wife together could procreate and ensure the healthy upbringing of children with a focus on their education.

In case the husband and the wife are from different backgrounds and have different cultural milieu, and sometimes find each other’s behaviour hard to cope with yet trying to maintain the relationship even when things are not going the way they should.

But, at times, people don’t want to adjust or unable to cope with the union, Islam gives them an option to part ways with dignity. If the partners want to terminate their troublesome relationship, they can use the option to do so with a few terms and conditions.

And that’s why Islam gives the right to end marriage to men as well as to women (with some variations).

The right to end a marriage given to women is known as ‘Khula’ in Islamic jurisprudence. If there is any kind of misunderstanding between the husband and the wife due to which the wife doesn’t want to live with the husband, she is free to move on, but she has to return “Mehr”, dower or a marriage gift given to her by the husband at the time of ‘Nikah’ (solemnisation of marriage). With this, the wife can offer to divorce and the husband has to oblige to her.

However, if the wife wants to stay on in the relationship, but the husband doesn’t, then he has the right to “talaq”. Islam has two types of talaqs, these are: talaq-e-sunnat and talaq-e-bid’at.  Talaq-e-sunnat can be further categorised into two types, these are talaq-e-hasan and talaq-e-ahsan.

Talaq-e-hasan and talaq-e-ahsan are the two procedures of divorce that find mention in the Holy Quran and are enunciated by the Prophet. Talaq-e-bid’at is the wrong way of divorcing a spouse and hence has no Quranic sanction but is still in vogue among Muslims.

Talaq-e-hasan is considered the best way of divorce mentioned in Surah al-Baqr, the second chapter of the Holy Quran. Islam says if a man wishes to end his relationship with his wife, he has to give divorce to her only once while she has menstruation, it signifies that the man is giving the divorce on a valid reason. In this case, even after the divorce, the man can’t force her to leave his house. She can stay put at his house till her three upcoming menses i.e. 70 to 75 days’ duration. However, these 90 days are very crucial when they have a scope to resolve the issues arising from mutual misunderstanding and thereby undo the divorce.

However, if the problems between them are not sorted out in these three months, both the husband and the wife are free to part ways and marry someone else. But in case, after the passage of these 2-3 years, neither of them gets married elsewhere, they can get together again (if they so wish), but will have to solemnise their marriage afresh.

The other way of talaq which the Supreme Court has recently given its decision is talaq-e-hasan. It says even after talaq, husband and wife will stay together under one roof. If the husband has given the first talaq after which the wife gets menses, he has to give another divorce but they continue to stay together. After one more menses, the man gives the third and final talaq.

However, if the man and the woman resolve the issues with them between the utterance of the first and the last talaq, they can continue with their marriage. However, if they solve the problems before the final call of divorce but after three months, they have to get married again. However, if the man announces the third talaq, the pair’s relationship ends forever.

Hence, the difference between talaq-e-ahasan and talaq-e-hasan is that in talaq-e-ahasan, the husband announces talaq only once and can review the relations in three months and even after three months their relations end, they can get married again in future. In talaq-e-hasan, the husband pronounces talaq in continuation thrice in three months with each announcement in a month.

Islam even calls talaq-e-ahasan the most appropriate way of divorce as it provides an opportunity for a reunion of the couple for a lifetime. However, the Supreme Court has made no mention of this mode of divorce, but rather held talaq-e-hasan valid in its opinion. Additionally, the right to ‘Khula’ given to Muslim women vests in women a right in a relationship and hence is valid.

Talaq-e-hasan can be problematic as in Shariah it is prescribed to announce talaq thrice in three months while announcing one talaq each month, but common people say it in one go and hence, the apex court has called it invalid warranting three years’ jail.

However, Islamic scholars have opposed the Supreme Court order arguing that it was an actual punishment by Islam by approving the announcement of triple talaq announced in a rage as the divorce by a husband and hence the court should not have intervened in it.

(The author is an Islamic scholar and secretary of the shariah department of the Jamaat-e-Islami Hind)