Talaq-e-Hasan valid when pronounced as per Muslim law: Allahabad High Court

The Allahabad High Court recently ruled that under Muslim Personal Law, a man and his wife are considered legally divorced if the husband pronounces Talaq in the manner required by Islamic law. The court, therefore, set aside a family court order, which had refused divorce to an estranged couple.

Dealing with the husband’s plea against the family court’s order in line with Talaq-e-Hasan declared by him, a bench of Justices Alok Mathur and Syed Qamar Hasan Rizvi said that Talaq and Khula are the terms of Muslim matrimonial law, meaning “divorce by men and at the instance of women, respectively, whereas Mubaraat denotes divorce by mutual consent”.

“The extra-judicial (outside the framework of constitutional law) divorce under Muslim Personal Law by way of Talaq is complete when the spouse pronounces Talaq in the manner prescribed under the Muslim Personal Law (Shariat),” the court held on July 3.

Talaq-e-Hasan is a form of divorce in Islamic law that is considered “approved, revocable, and legally valid” under traditional jurisprudence. Unlike instant divorce, it is a gradual, multi-step process designed to prevent hasty decisions and encourage reconciliation.

The bench felt it necessary to observe that Ila, Zihar, and Lian — traditional and ancient forms of conditional divorce found in Islamic jurisprudence — are pre-Islamic customary concepts abolished by Islamic law.

The husband had also obtained a Fatwa (non-binding legal opinion on a point of Islamic law) regarding his declaration of divorce. Dealing with this proposition, the court said that though a fatwa is not a verdict of any kind, but just an expert opinion based on classical sources.

The division bench pronounced the judgement on July 3.

“The opinion is being sought, and the reply is being given to the best of the knowledge and belief of the person or body consulted. The Darul Uloom Nadwatul Ulema, Lucknow, a widely recognised muslim seminary, maintains a department known as Dar-ul-Ifta staffed by experts in religious laws who answer all sorts of queries believed to be of religious significance, their replies/opinions being popularly known as fatwa,” the order stated.

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Talaq outside of legal framework

The couple had married on February 1, 2022, under the Muslim Personal Law, however, owing to matrimonial disputes, the wife left the matrimonial home on September 12, 2023, and they started living separately.

The man first attempted reconciliation through an Islamic mediation centre. When it failed and the wife demanded a divorce, he pronounced Talaq-e-Hasan by sending three Talaq notices on July 22, August 22, and September 25, 2024, respectively, that were a month apart from each other. The wife admitted of having received all three notices. The husband subsequently obtained a fatwa, which opined that the marriage had already come to an end.

The wife received Rs 1 lakh mehar (a mandatory bridal gift that the groom must pay to the bride upon marriage) from the husband as a part of the divorce proceedings under Islamic law.

To obtain an official declaration of his marital status, the husband filed a suit before the family court under the Family Courts Act. The wife, too, admitted the divorce in her written statement and evidence and even expressed no objection to a decree declaring the marriage dissolved.

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The family court, however, dismissed the plea, holding that since the divorce was not disputed, there was no need for a declaratory decree under the Specific Relief Act. As a result, the husband challenged that order before the High Court.

Law provisions applicable in such cases

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 provides for the application of personal law to Muslims.

The Miscellaneous Personal Laws (Extension) Act, 1959, made it applicable to the whole of India except the State of Jammu and Kashmir.

A bare reading of the provisions of these Acts shows that, in respect of the dissolution of marriage, the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat).

Section 5 of the Act of 1937, dealing with the dissolution of marriage by the Court in certain circumstances, came to be repealed by the Dissolution of Muslim Marriages Act, 1939, on March 17, 1939.

The aim and objective of the Act of 1939, as is reflected from the legislation itself, is to clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under

Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married muslim woman on her marriage tie.

Any declaration granted by the family court under Section 7(b) or Section 7(d) endorsing such extra-judicial divorce should remain subject to the final ruling of any such challenge, if preferred.

The court noted that these legal provisions reflected the legislative intent to address a significant societal need on the entitlement of “every member of a civilised society” to have a clear and definite marital status, particularly when such statuses arise from personal laws or through recognised and accepted customary practices.

“In such circumstances, judicial endorsement of marital status is not merely desirable but, in appropriate circumstances, imperative. The Talaq may take place as an extra-judicial divorce and is complete the moment the husband pronounces divorce in accordance with the recognised mode as prescribed under the Muslim Personal Law,” it held.

The court consequently directed the family court to declare the couple’s matrimonial status as divorced.