5 months ago
2
On November 19, 2025, successful Benazeer Heena vs Union of India and Ors., a three-judge Bench of the Supreme Court of India comprising Justices Surya Kant, Ujjal Bhuyan and N. Kotiswar Singh, expressed beardown reservations astir talaq-e-hasan, a signifier that allows a Muslim antheral to divorcement his woman by pronouncing talaq erstwhile a period for 3 consecutive months during tuhr, the play of a woman’s ritual purity betwixt menstrual cycles. The divorcement becomes irrevocable upon the 3rd pronouncement, unless it is withdrawn earlier.
In Heena’s case, the hubby had communicated the talaq-e-hasan done his advocator without signing the papers himself. The Court was visibly disturbed by the information that advocates were granting divorces and remarked: “Tomorrow, what volition hap if a lawsuit disowns the advocate?... Should a civilized nine let this benignant of practice?”
A declaration betwixt equals
The interest of the judges was wholly justified, for the Koran does not assistance men a superior presumption that entitles them to unilaterally dissolve a matrimony either straight oregon done their agents. This is because, dissimilar traditions that dainty matrimony arsenic an indissoluble sacrament, Islam views it arsenic a steadfast but dissoluble declaration betwixt 2 equals.
The Koran uses 2 legally perceptive presumption for matrimony — uqdatan-nikah (2:235, 2:237), which means the “bond of marriage”, and meesaaqan ghaleean (4:21), a solemn covenant betwixt a antheral and a pistillate that enables them to unrecorded unneurotic successful intimate companionship.
From a modern standpoint, these presumption parallel the modern prenuptial contract, and frankincense request that some spouses beryllium consenting adults acting freely and with afloat knowledge. The underlying premise is 1 of equality betwixt 2 autonomous persons, which negates immoderate hierarchical presumption that places the hubby supra the wife. For this reason, a unilateral termination of matrimony by the hubby is impermissible successful Islam. Such an enactment would besides contravene the cardinal rule of earthy justice, nemo iudex successful causa sua (that nary idiosyncratic whitethorn beryllium successful judgement implicit his ain dispute) which Islam upholds.
The Koranic procedure
To defender against deviations from its egalitarian approach, the Koran treats divorcement extensively successful chapters 2, 4, and 65 — al-Baqara, al-Nisa, and al-Talaq — and stipulates 4 chiseled conciliatory measures earlier the pronouncement of the archetypal talaq.
First, it recommends (in 4:34-35) backstage solution (‘izu hunna). If this fails, the adjacent measurement is impermanent carnal separation (uhjuru hunna). Should discord continue, the hubby is advised, arsenic a 3rd step, to pass intelligibly to his woman (izribu hunna) the seriousness of the quality and effort to repair the relationship.
For instance, helium whitethorn archer his woman that unresolved tensions could escalate into nationalist gossip, perchance harming the family. If reconciliation inactive remains elusive, the Koran, arsenic a 4th step, instructs that the contented beryllium brought earlier 2 arbiters from the families of some spouses.
Only aft each 4 steps neglect is the archetypal talaq permitted, followed by iddah (2:228–232; 65:1–4). Within iddah — 3 menstrual cycles per 2:228, 229 — nary much than 2 talaqs whitethorn beryllium issued. For post-menopausal oregon amenorrhoeic women, iddah lasts 3 months; for large women, it extends until childbirth (65:4).
If reconciliation does not hap during iddah, the last irrevocable talaq whitethorn beryllium issued aft iddah ends (2:231). Once pronounced, the last talaq terminates the marital narration completely.
However, adjacent aft the lapse of iddah, the Koran permits reunion if the last talaq has not been invoked: “When you divorcement women and they implicit their word [iddah], bash not forestall them from marrying their [former] husbands if they mutually hold connected equitable terms” (2:232). In different words, aft iddah, the mates whitethorn either re-contract the matrimony connected caller presumption oregon prosecute imperishable dissolution effected done the 3rd and last talaq, declared earlier 2 witnesses (65:2).
This is the lone talaq process authorised by the Koran and exemplified by the Prophet. It applies to some men and women, accordant with Islam’s prohibition of gender-based discrimination. Accordingly, each different modes of divorce, including talaq-e-bid‘a, talaq-e-hasan, talaq-e-ahsan, and talaq-e-tafweed, find nary enactment successful the Koran oregon the hadith.
They originate successful fatawa traditions crafted by sectarian jurists who, shaped by entrenched patriarchy, rejected women’s autonomy and ineligible personhood. Their stance is starkly reflected successful their validation of talaq-e-hasan, which permits a hubby to dissolve a matrimony done an appointed cause (vakeel) nether the conception of tawkeel (agency) — a conception wholly unsupported by Koranic oregon Prophetic precedent and profoundly demeaning to women
An overview
The Supreme Court would frankincense beryllium connected steadfast law and Islamic footing were it to onslaught down each unilateral divorcement practices disposable exclusively to Muslim men, retaining lone the Koranic process, which whitethorn beryllium made gender-neutral.
A. Faizur Rahman is an autarkic researcher and the Secretary-General of the Chennai-based Islamic Forum for the Promotion of Moderate Thought. E-mail: themoderates2020@gmail.com Twitter: @FaizEngineer
