Supreme Court Questions Talaq-e-Hasan: “How Is This Allowed in Modern Society?”

The Supreme Court of India has raised strong concerns over the continued practice of Talaq-e-Hasan, a form of unilateral divorce under Muslim personal law that allows a husband to pronounce “talaq” once a month, over three months, to dissolve the marriage. The Court questioned whether such a practice can survive in a modern, constitutional democracy committed to gender equality and dignity.

Supreme Court's Observation: A Question of Dignity and Modernity

A bench led by Justice Surya Kant, and comprising Justices Ujjal Bhuyan and N. Kotiswar Singh, observed that the issue goes beyond the rights of an individual woman and concerns societal dignity and the constitutionally guaranteed status of women in India.

The Court noted that if Talaq-e-Hasan is found to be discriminatory or arbitrary, it may require regulation or complete invalidation to align it with modern constitutional principles.

Facts of the Case: The Petitioner's Challenge

The Court was hearing petitions including one filed by a woman who received three notices of Talaq-e-Hasan in April, May, and June 2022, allegedly after she and her family refused to pay additional dowry.

The petitioner argued that the practice:

  • is arbitrary,

  • violates women’s dignity,

  • is discriminatory,

  • and is inconsistent with constitutional values of equality and justice.

This raised serious questions about the compatibility of religious divorce practices with constitutional protections.

Court's Criticism of Abuse and Procedural Irregularities

The bench strongly criticised the misuse of Talaq-e-Hasan, noting that one husband authorised his advocate to issue the talaq notice on his behalf. The Court questioned the validity of such “innovations,” pointing out that even under personal law, a marriage cannot be dissolved casually or by proxy.

The Court remarked:
“What prevents the husband from directly writing to her? Is this how the dignity of a woman is upheld? Should a civilised society allow this kind of practice?”

This reflects judicial concern regarding patriarchal misuse of personal law provisions.

Wider Social Impact: What About Women Without Access to Justice?

The Court praised the petitioner's courage but expressed concern for women who do not have access to courts. The bench highlighted real-life consequences of such divorces, such as:

  • children unable to secure school admissions,

  • women unable to obtain passports due to the husband’s refusal to cooperate,

  • inability to secure legal recognition of marital status.

These factors underline the systemic vulnerabilities faced by women subjected to unilateral divorces.

Pending Opinions from National Commissions

In August 2025, the Supreme Court sought inputs from:

  • National Human Rights Commission (NHRC),

  • National Commission for Women (NCW),

  • National Commission for Protection of Child Rights (NCPCR).

NHRC has now requested more time to file its response.

Legal Context: Distinction From Talaq-e-Biddat (Instant Triple Talaq)

While Talaq-e-Biddat (instant triple talaq) was declared unconstitutional and “manifestly arbitrary” in Shayara Bano v. Union of India (2017), the Court noted that Talaq-e-Hasan is different because it involves spaced-out pronouncements.

Nevertheless, the petition urges the Court to extend similar constitutional protections to women facing Talaq-e-Hasan.

Possible Reference to Constitution Bench

The bench stated that whether the case requires reference to a Constitution Bench depends on the legal issues framed. A three-judge bench can also decide the matter by applying existing constitutional principles.

The matter has been posted for 26 November, with a direction that the husband must be personally present in court.

Statutes, Constitutional Provisions, and Judicial Precedents Involved

Relevant Constitutional Provisions

  1. Article 14 – Right to Equality

  2. Article 15(1) – Prohibition of discrimination on grounds of sex

  3. Article 21 – Right to life and dignity

  4. Article 25 – Freedom of religion (subject to public order, morality, and health)

  5. Article 13 – Invalidates any law inconsistent with fundamental rights

  6. Article 32 – Remedies for enforcement of fundamental rights

These form the basis for testing personal law practices against constitutional mandates.

Relevant Statutes / Legal Framework

  1. Muslim Personal Law (Shariat) Application Act, 1937

  2. Dissolution of Muslim Marriages Act, 1939 (governs women-initiated divorce, providing a comparative standard)

  3. Dowry Prohibition Act, 1961 (relevant in the petitioner’s allegations)

  4. Protection of Women from Domestic Violence Act, 2005 (post-divorce vulnerabilities fall under this)

Although personal laws are uncodified, they are subject to constitutional scrutiny.

Key Judicial Precedents

  1. Shayara Bano v. Union of India (2017)

    • Declared instant triple talaq unconstitutional and “manifestly arbitrary.”

    • Reaffirmed that personal laws are subject to fundamental rights.

    • Central precedent for present case.

  2. Danial Latifi v. Union of India (2001)

    • Interpreted Muslim Women (Protection of Rights on Divorce) Act, 1986.

    • Upheld constitutional rights of divorced Muslim women.

  3. Shamim Ara v. State of UP (2002)

    • Talaq must be for a reasonable cause and must follow attempts at reconciliation.

    • A key precedent that restricts arbitrary talaq.

  4. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996)

    • Personal laws must conform to constitutional values.

  5. Vishaka v. State of Rajasthan (1997) (applicable in principle)

    • Reinforces dignity and equality of women as core constitutional mandates.

Together, these cases provide the framework for evaluating Talaq-e-Hasan.

Conclusion: A Crucial Test for Personal Law Reform in India

The Supreme Court’s sharp remarks reflect a growing judicial stance that personal law practices cannot violate constitutional values, especially dignity and equality of women. The case marks a critical moment in India’s ongoing evolution of balancing religious practices with fundamental rights.

Whether Talaq-e-Hasan will be struck down or regulated, the Court’s direction indicates a movement toward greater protection for women, especially those without access to legal remedies.
The upcoming hearings may determine the future of unilateral divorce practices within Muslim personal law.


Location: Pune, Maharashtra, India

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