Paper: GS – II, Subject: Polity, Topic: Judiciary, Issue: Gender Justice in Talaq.
Context:
In the case of Benazeer Heena vs. Union of India and Ors., the Supreme Court expressed concerns about the practice of talaq-e-hasan, where a Muslim man can divorce his wife by pronouncing talaq once a month for three consecutive months.
Key Highlights:
Marriage as a Contract Between Equals in Islam:
The Koran uses terms like “uqdatan-nikah” (bond of marriage) and “meesaagan ghaleean” (solemn covenant) to describe marriage, emphasizing mutual consent and equality between spouses.
- Equality: The underlying premise of marriage in Islam is equality between two autonomous persons, negating any hierarchical assumption that places the husband above the wife.
- Consent: Both spouses must be consenting adults, acting freely and with full knowledge.
- Unilateral Termination Impermissible: A unilateral termination of marriage by the husband is impermissible in Islam, as it contravenes the principle of natural justice, “nemo iudex in causa sua” (no person may sit in judgment over his own dispute)
The Koranic Procedure for Divorce:
Four distinct conciliatory measures before the pronouncement of the first talaq:
- Private Resolution (izu hunna): The first step is to attempt private resolution of the dispute between the spouses.
- Temporary Physical Separation (uhjuru hunna): If private resolution fails, the next step is temporary physical separation.
- Communication of Seriousness (izribu hunna): Should discord continue, the husband is advised to communicate clearly to his wife the seriousness of the dispute and attempt to repair the relationship.
- Arbitration (hakam): If reconciliation remains elusive, the issue should be brought before two arbiters from the families of both spouses.
Rejection of Other Forms of Talaq:
All other modes of divorce, including talaq-e-bid’a, talaq-e-hasan, talaq-e-ahsan, and talaq-e-tafweed, find no support in the Koran or the hadith. These practices originate in fatawa traditions crafted by sectarian jurists who, shaped by entrenched patriarchy, rejected women’s autonomy and legal personhood.
- Patriarchal Origins
- Lack of Koranic Support
- Tawkeel (Agency): The validation of talaq-e-hasan, which permits a husband to dissolve a marriage through an appointed agent (vakeel) under the concept of tawkeel (agency), is wholly unsupported by Koranic or Prophetic precedent and deeply demeaning to women
Conclusion:
The Supreme Court would be on firm constitutional and Islamic footing were it to strike down all unilateral divorce practices available exclusively to Muslim men, retaining only the Koranic process, which may be made gender-neutral. This would align with the Islamic principles of equality, justice, and the sanctity of marriage as a contract between two consenting adults.
https://www.thehindu.com/opinion/op-ed/invalidate-all-forms-of-unilateral-talaq/article70450265.ece
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