Question Is Not Of Religion, It Is Of Humanity: Supreme Court Halts Talaq-e-Hasan Between Couple; Requests Justice Kurian Joseph To Act As A Mediator

The Supreme Court has stayed the operation of Talaq-e-Hasan pronouncements between a Muslim couple and requested its former Judge Justice Kurian Joseph to act as an Mediator between the parties to resolve the issue.

The Court’s order came during the hearing of a petition filed by journalist Benazeer Heena, who alleged that her husband—a practicing advocate—had engaged in "postal mischief" by deliberately sending divorce notices to incorrect addresses to ensure they returned undelivered.

The Bench of Chief Justice Surya Kant and Justice Joymalya Bagchi ordered, "In the midst of the hearings, of the main case as well as the contempt proceedings initiated by Benazeer Heena against Yousuf Naqui, Advocate, we find that there is an urgent and dire necessity of referring the parties to mediation for finding out an amicable solution and consequential valid dissolution of their marriage, through a valid Talaq or the parties, with the help of a senior mediator might find some other alternative to resolve their disputes. Upon our suggestion, the parties have fairly agreed to go for mediation, keeping in mind the complex issue and the background of this case. We request Justice Kurian Joseph, a former judge of this Court, to act as the sole senior mediator between the parties. The parties/their counsel are directed to contact Justice Kurian Joseph on his mobile number...by tomorrow and fix the date for initiation of mediation. The parties will remain present in person as and when required by Justice Kurian Joseph."

"We request Justice Kurian Joseph to make an endeavor to resolve the dispute within within four weeks, within four weeks, post this matter for further consideration on...We further direct that in view of mediation having been initiated, the earlier talaqs alleged to have been given by respondent shall remain in abeyance", the Court said.

It was submitted by the Counsel for the Petitioner, "The talaq was delivered by post to Hina, I mean the fourth talaq, but the first valid...We were shared. So we were tracking it in all our honesty...Now, what we came to know by the track that the talaq by malafide intentions was marked as an insufficient address by the postal department and it was reverted back to the sender."

The counsel alleged that the husband—himself, an Advocate—deliberately manipulated the process of delivering Talaq notices to ensure they never reached the petitioner. Despite a prior court order declaring earlier attempts invalid, the husband allegedly shared postal receipts for tracking while intentionally providing "insufficient addresses." This caused the notices to be reverted to the sender by the postal department.

The Counsel emphasized that this was a mala fide attempt to fulfil the technical requirements of Shariat while denying the wife her right to notice, describing the act as a "hilarious" but heinous evasion of justice where notices were sent to the wife’s lawyer instead of the wife herself.

The counsel argued that the husband, Mr Naqui, showed a total lack of respect for the Apex Court by failing to coordinate a meeting between the parties to sort out their differences. Instead, he allegedly rushed to complete his "quota" of three talaqs through the mail. This behaviour, the counsel contended, arises from a sense of privilege where individuals feel they can bypass the law of the land by hiding behind religious personal codes.

He said, "The problem is, my Lord, that the Holy Quran should also be on your dice because the immunity of personal law cannot go unchecked, and the authority of Shariah comes from the Holy Quran. So, I fail to understand why the Holy Quran is not in one of the shelves here because it is also a law book and in the name of which, and the violating of which, these people are committing such heinous mistakes, Lordship. So, as of now, my Lord, to dispose of my contempt, yet again, this person, Naqui, and this is all the respect I can give him, he should be called again in the court, reprimanded again, his three talaqs should be held invalid and being a lawyer, he should be cut to size what he is doing in the name of Shariah."

Chief Justice remarked, "Let us take an extreme case also, that there is a wife who is evading the service. She is evading the service of the talaq notice, deliberately; she does not want. We will go to that extent also. There also, the only recourse with you will be to use some mechanism, some well-known recourse in law to effect service or deemed service on that party...What prevents you in a newspaper that I have given talaq and wife to serve and it could not be served. That will also be notice."

The Court remarked, "The question is not of religion. The question is of a human/person. Who are the material before us? Who are fighting? These are the very sentimental, emotional litigation. Whether a person belongs to 'A' religion or 'B' religion. We are not concerned about that. Therefore, we always try to create a situation where an amicable, acceptable, congenial, peaceful atmosphere environment can be created where the parties can amicably settle. Particularly in a case, probably, where both sides are working or like that, we want to respectfully part ways. When we talk of respectfully part ways, we have to ensure that mutual respect is maintained by both sides...Now, he is also an advocate. He is not a layman. She is also an educated woman."

The Court ordered that the operation of the Talaq-e-Hasan pronouncements allegedly made by the husband would remain in abeyance (suspended) during the mediation process, effectively halting the divorce for now.

In a similar petition, involving an illiterate homemaker whose husband had failed to appear despite notice, noting that the wife alleged her signatures were obtained on blank papers, the Bench stayed the operation of the Talaq-e-Hasan invoked by the husband.

The Court declared that the parties "shall be deemed to be a validly married couple" until the husband appears and proves the validity of the divorce. The Station House Officer (SHO) was directed to locate the husband and ensure his presence before the Court.

Background

A PIL has been filed in the Supreme Court seeking to declare 'Talaq-e-Hasan' and all other forms of "unilateral extra-judicial talaq" as void and unconstitutional, claiming they were arbitrary, irrational, and violated fundamental rights. The petition, filed by Ghaziabad resident Benazeer Heena, who claims to be a victim of unilateral extra-judicial Talaq-E-Hasan, also seeks a direction to the Centre to frame guidelines for neutral and uniform grounds of divorce and procedure for all citizens.

The Petition was mentioned by Senior Advocate Pinky Anand on May 25, 2022, stating that Benazeer has already received her second notice of Talaq. "It is about a woman being abused", the Senior Counsel told the Court.

In June 2022, Heena had received the third and final notice of Talaq under Talaq-e-Hasan. Benazeer, a journalist, had approached the Supreme Court in the first week of May this year, stating that her husband had given her the first notice of Talaq through a Lawyer's notice.

Nazreen Nisha, a Mumbai resident, had moved the Supreme Court through Advocate Ashutosh Dubey. She has also prayed for a direction to the Centre to frame guidelines for gender-neutral, religion-neutral uniform grounds of divorce and uniform procedure of divorce for all. The petitioner has stated that she was married as per Muslim rites, and her parents were being compelled to give dowry, and she was being tortured for the same. The petitioner was made to suffer on account of inadequate dowr,y and soon the torture by the family of the husband turned into frequent physical assaults.

In August 2022, the Supreme Court granted time to the Counsel for Petitioner Senior Advocate Pinky Anand to seek instruction from the petitioner Benazeer Heena on the proposal of the Court on whether she is open to divorce by mutual consent if meher is taken care of? The Court had, while posing the question before the Petitioner had observed that, "Prima facie this is not improper. Women also have the option of Khula. Prima facie, I do not agree with the petitioners. I don't want to make an agenda of it for any other reason."

On August 29, 2022, the Supreme Court had issued notices in the above mentioned pleas. The Court said that it does not want to entertain any third-party intervention at present about the larger issue of the validity of the form of Talaq. However, Senior Advocate Ranjit Kumar told the Court that the petition of Nazreen Nisha is also a substantial petition by a victim. He told the Court that Nazreen had received the third Talaq by message by morning. He read out the message before the Court.

The Court also admitted the pleas seeking 'Talaq-e-Hasan' and all other forms of "unilateral extrajudicial divorce" to be declared unconstitutional. 'Talaq-e-Hasan' is a form of divorce among Muslims by which a man can dissolve the marriage by pronouncing the word 'talaq' once every month over a three-month period. A three-judge bench asked the Centre, National Commission for Women, National Human Rights Commission and others to file their responses within four weeks.

Cause Title: Benazeer Heena vs. Union of India [W.P.(C) No. 348/2022] and other connected matters.