In a significant intervention into Muslim personal law, the Supreme Court’s observations in Benazeer Heena vs Union of India have reopened the debate on whether unilateral forms of talaq can survive constitutional and religious scrutiny. The case is not merely about procedure, but about deeper questions of equality, agency, and the state’s role in reforming personal laws.
What the Supreme Court Flagged in the Heena Case
On November 19, 2025, a three-judge Bench of the comprising Justices Surya Kant, Ujjal Bhuyan and N. Kotiswar Singh expressed unease over talaq-e-hasan, a form of divorce that allows a Muslim man to pronounce talaq once a month over three months, making the divorce irrevocable on the third pronouncement.
The immediate trigger was procedural: the husband had communicated the talaq through his advocate without signing the document himself. The Court questioned whether lawyers could effectively “grant” divorces and warned of the dangers this posed to legal certainty, consent, and accountability in a civilised legal system.
Marriage in Islam: A Contract Between Equals
The Court’s concern aligns closely with Islamic legal principles themselves. Unlike religious traditions that treat marriage as an indissoluble sacrament, Islam conceptualises marriage as a firm yet dissoluble contract between two equal parties. The Quran uses the terms “uqdatan-nikah” (bond of marriage) and “meesaaqan ghaleean” (solemn covenant), emphasising consent, knowledge, and autonomy of both spouses.
From a modern legal perspective, this conception resembles a prenuptial contract. It leaves little room for hierarchical assumptions that place unilateral power in the husband’s hands. A one-sided dissolution, especially through an agent, violates both this contractual logic and the principle of natural justice that no person should be a judge in their own cause.
The Quranic Safeguards Around Divorce
To prevent arbitrary or impulsive dissolution of marriage, the Quran lays down a carefully sequenced procedure for divorce in chapters al-Baqara, al-Nisa, and al-Talaq. Before any talaq is pronounced, four conciliatory steps are mandated: private reconciliation, temporary separation, clear communication about the seriousness of the dispute, and family-based arbitration.
Only after these fail can the first talaq be issued, followed by iddah, a waiting period designed to allow reflection and reconciliation. Even within iddah, the number of permissible talaqs is limited. The final, irrevocable talaq can occur only after iddah ends and with procedural safeguards such as witnesses. This process is deliberately slow, deliberative, and reconciliation-oriented.
Why Talaq-e-Hasan Raises Deeper Concerns
Talaq-e-hasan departs from this Quranic framework by normalising unilateral male authority and permitting divorce through agency (“tawkeel”). This is particularly troubling because it strips the wife of participation in a process that fundamentally alters her civil status. Such practices are rooted not in scripture, but in later juristic opinions shaped by patriarchal social orders rather than egalitarian religious principles.
The validation of talaq through a vakeel reduces marriage to a revocable permission rather than a mutual covenant, undermining women’s legal personhood and dignity.
Constitutional and Religious Convergence
From a constitutional standpoint, unilateral talaq practices sit uneasily with guarantees of equality, dignity, and due process. From an Islamic standpoint, they conflict with the Quran’s insistence on fairness, mutual consent, and reconciliation. This convergence strengthens the case for judicial intervention that is both constitutionally robust and theologically grounded.
The Court’s questioning therefore signals more than procedural discomfort; it hints at a possible reassessment of whether any form of unilateral divorce exclusive to men can be sustained.
What a Narrow, Principled Reform Could Look Like
Rather than imposing external norms, the Court could anchor reform in the Quranic procedure itself, retaining only a gender-neutral, reconciliation-first divorce framework. Such an approach would eliminate talaq-e-hasan and similar practices without undermining religious freedom, since it restores, rather than distorts, core Islamic principles.
What to Note for Prelims?
- Talaq-e-hasan involves three pronouncements over three months.
- The Supreme Court questioned divorce communicated through advocates.
- Islam views marriage as a contract, not a sacrament.
- Quran prescribes a structured, conciliatory divorce process.
What to Note for Mains?
- Examine the compatibility of unilateral talaq with Article 14 and 21.
- Discuss how constitutional courts can rely on internal religious principles for reform.
- Analyse the tension between personal law autonomy and gender justice.
- Evaluate whether judicial reform is preferable to legislative intervention in personal laws.
The Larger Question Before the Court
The Heena case places the Supreme Court at a familiar crossroads: balancing religious freedom with constitutional morality. By interrogating talaq-e-hasan through both lenses, the Court has opened the door to a reform that neither secularises nor theologises personal law, but instead insists on equality, consent, and dignity as non-negotiable foundations of marriage and divorce.
