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Wednesday, January 26, 2022

Delhi HC to hear plea against talaq al-sunnah as Centre says other forms of talaq not illegal

Issuing notice to the Centre, the division bench of Justices Vipin Sanghi and Jasmeet Singh asked the authorities to file a response within eight weeks and listed it for hearing on May 2.

Written by Sofi Ahsan | New Delhi |
Updated: January 13, 2022 6:49:59 am
The petitioner has sought a review of the order.

The Delhi High Court on Wednesday agreed to hear a petition seeking to declare talaq al-sunnah, a type of divorce in Islamic jurisprudence, as unconstitutional and discriminatory, after the Centre submitted that the Muslim Women (Protection of Rights on Marriage) Act, 2019 — which criminalises instant triple talaq — does not render the other forms of talaq illegal.

Issuing notice to the Centre, the division bench of Justices Vipin Sanghi and Jasmeet Singh asked the authorities to file a response within eight weeks and listed it for hearing on May 2.

Dismissing the same petition filed by a Muslim woman, apprehending divorce by her husband, the court had, on September 23, said that the plea is completely misconceived in light of the 2019 law, and in particular its provision declaring pronouncement of talaq as illegal.

The petitioner later sought a review of the order.

Section 2(c) of the 2019 Act states that talaq “means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”. Talaq al-sunnah, which also involves pronouncement of ‘talaq’ by the husband, is revocable, as it involves the feature of a certain waiting period before it can be considered final.

Advocate Monika Arora, representing the Centre, told the court on Wednesday that while one form of talaq (instant talaq) has been declared illegal, the other two forms were not specifically covered by the 2019 Act. “If you say ‘talaq’ one after the another, that was declared to be an offence by the Act of Parliament. But if you say it three times in three months, or with a gap, it is still not declared to be illegal,” Arora submitted, while seeking time to file a reply on behalf of the government

The review petition against the September 23 HC order had been filed by the petitioner to seek a clarification whether talaq al-sunnah also falls within the meaning of talaq under Section 2 (c) of the 2019 law. Following the Centre’s submission, the court said that the review petition deserves to be allowed.

While recalling the dismissal order passed last year, the court said that it had proceeded on the basis that talaq al-sunnah is covered by the 2019 Act on the assumption that talaq al-sunnah is also a pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner. However, the court said, it appears that talaq al-sunnah is not covered by the definition of talaq under the 2019 law.

The petition before the court states that it challenges the “assumed absolute discretion” of a Muslim husband to give divorce to his wife “at any time without any reason and without advance notice to wife and without presence of wife on the grounds of being arbitrary, anti-shariat, unconstitutional, discriminatory, barbaric and illegal”.

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