Talaq-e-Hassan under Supreme Court scrutiny: What is the practice of talaq and why is it being challenged? explainer news

Last updated:November 21, 2025, 09:35 IST

As a petitioner alleges abuse and discrimination, the Supreme Court is examining whether the long-standing Muslim divorce practice needs constitutional scrutiny

The Supreme Court on Wednesday raised sharp questions on its relevance. talaq-e-hasan In 2025, described unilateral Muslim divorce practice as potentially incompatible with “civilized society”.

The petition before the court was filed by journalist Benazir Heena, who has argued that this practice violates fundamental rights under Articles 14, 15, 21 and 25. As the bench examined how such unilateral divorces operate today, it asked all parties to submit notes outlining the legal issues that need to be considered.

The court emphasized that it was not merely addressing a private dispute, but a practice affecting society at large, and said it may consider referring the case to a five-judge Constitution bench after receiving the legal questions.

What is Talaq-e-Hassan and how does it work

Talaq-e-Hassan is one of the traditional forms of divorce under Muslim Personal Law. Under this method, a husband says “talaq” once a month for three months, usually during the period when the wife is not menstruating. After the first ovulation, the couple should wait until the next menstruation. If the husband repeats the declaration in the second month, the marriage still continues, and this period is regarded as a time when the couple can reconsider or reconcile.

If the husband repeats the declaration again in the third month and there is no reconciliation, the divorce becomes final.

These three months are also considered a period of abstinence, and if the couple initiates cohabitation or reconciliation at any point, the divorce process is cancelled. If not, the marriage is dissolved after the third declaration.

Other types of divorce practices

This process is treated differently from other forms such as talaq-e-ahsan, which involves a waiting period of three months after a single declaration, and where the marriage is revived by reconciliation before the end of Iddat.

This is also different from Mubarat, where both spouses agree to the separation. openBy which a woman can ask for divorce I am returning his kindness Or if the husband does not consent the case may be pursued through the court.

How is Talaq-e-Hassan different from Talaq-e-Biddat?

A major issue of comparison before the court is talaq-e-biddat, commonly known as instant triple talaq. Under talaq-e-biddat, a husband could end a marriage immediately by saying “talaq” three times at once, whether orally, in writing or even through electronic messages. In this form of divorce no waiting period is given and no scope for reconciliation is left.

Talaq-e-Biddat was struck down by the Supreme Court in the 2017 Shayara Bano case, and was later criminalized under the Muslim Women (Protection of Rights on Marriage) Act, 2019. The 2019 law made the practice a criminal offense with up to three years’ imprisonment and a fine.

Unlike Talaq-e-Biddat, Talaq-e-Hassan was not affected by the 2019 Act and remains legal. High courts have also held that traditional forms of divorce such as talaq-e-hasan and talaq-e-ahsan are still valid.

What did the petitioner tell the court?

Benazir Hina approached the Supreme Court in 2022 after receiving a divorce notice allegedly sent by her husband through a lawyer. According to his plea, the first notice was sent through speed post on April 19, with the second and third notices being given in the following months. She told the court that the notice was not signed by her husband, and her lawyer argued that she could face charges of polygamy because she could not prove that she was divorced.

Her lawyer told the bench that her four-year-old child was denied admission to school and she was also struggling to get her passport renewed as she was unable to establish her marital status. The lawyer further said that she was given a lump sum amount of Rs 17,000 and her husband had remarried, leaving her to deal with the consequences of proving the divorce.

The bench noted their determination in pursuing the case and expressed concern about the situation of women who may not have the resources to challenge such notices. “We salute this woman who has decided to fight for her rights.”

Why did the Supreme Court question this practice?

While hearing the case, the bench raised questions on the manner of issuing the divorce notice. It also raised concerns about the widespread idea of ​​unilateral divorce, especially when notices were reportedly being served through advocates. The bench asked whether the husband “has so much ego that he cannot even talk to her for divorce”, and questioned what kind of practice this is that allows representatives to issue divorce notices with dignity.

Justice Surya Kant asked: “Should a civilized society allow such a practice?” The bench also questioned, “How are these new innovative ideas being invented? Considering that whatever be the religious practices, at least they should be performed by the person with whom they belong.”

When the husband’s counsel argued that Muslim law allows a husband to authorize another person to issue a divorce notice, the court responded by asking why the husband could not communicate directly. The bench also raised questions about potential disputes if a client later refuses to hire a lawyer who serves the notice.

The bench remarked that the society at large was affected by one-sided practices, and if “gross discriminatory practices” existed then “certain remedial measures” should be taken. It added that the courts may have to intervene in such cases and consider what parameters can be set through judicial means.

Previous judicial opinions and High Court decisions

The current investigation marks a change from earlier judicial positions. In 2022, a Supreme Court bench of Justices Sanjay Kishan Kaul and MM Sundaresh had orally indicated that talaq-e-hasan was not prima facie unreasonable as it allowed time for reconsideration. Justice Kaul had said that he did not agree with the petitioners at that stage and pointed to the availability of Khula as an option for women.

High courts have also upheld traditional forms of divorce. The Himachal Pradesh High Court had earlier observed that the 2017 judgment and the 2019 Act relate only to talaq-e-biddat and do not affect practices like talaq-e-hasan. It also mentioned the historical context, saying that Talaq-e-Hassan was introduced by the Prophet to stop the pre-Islamic practice where men repeatedly divorced and abused their wives.

The Kerala High Court clarified in 2022 that talaq-e-ahsan and talaq-e-hasan will remain valid under Muslim personal law and said the Shayra Banu judgment did not invalidate these forms.

A similar challenge had reached the Delhi High Court when petitioner Razia Naz had alleged that the divorce notice was used to pressure her into withdrawing her domestic violence complaint. He withdrew the petition seeking intervention before the Supreme Court in Heena’s case in 2023.

what happens next

The Supreme Court has said that it will consider handing over the matter to a five-judge Constitution bench. It asked the parties to file notes outlining the issues to be decided and the extent to which the court can intervene. The bench also accepted the intervention applications of All India Muslim Personal Law Board and All Kerala Jamiatul Ulama and sought their arguments.

The court had earlier sought opinion from the National Commission for Women, National Human Rights Commission and National Commission for Protection of Child Rights on the issues raised. The next hearing is scheduled for November 26, the bench said, adding that the date coincides with Constitution Day.

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