By Binny Yadav
On November 19, the Supreme Court revisited a question India has circled for decades, but never fully resolved: How should a constitutional democracy committed to equality respond to religious practices that place disproportionate burdens on women? The latest hearing in the challenge to Talaq-e-Hasan was not merely about the validity of an 11-page divorce notice. It compelled the Court—and the country—to confront the uneasy tension between the sanctity of religious tradition and the imperatives of individual rights, dignity, and substantive gender justice.
For feminist scholars, this struggle is familiar. Personal law has repeatedly tested constitutional promises, especially for women whose autonomy, safety, and economic stability hinge on how marriage and divorce are regulated. Practices historically available only to men, such as unilateral divorce, reinforce hierarchies the Constitution is designed to dismantle.
It is in this broader terrain that the Supreme Court stepped in to examine a talaq issued not only unilaterally, but through a method questionable even within Islamic tradition. In Benazeer Heena vs Union of India, the Court was invited to shape a judicial approach that respects faith, but refuses to let faith shield arbitrariness or gendered harm. The matter sits squarely at the crossroads of religious autonomy and constitutional rights in a diverse, plural society.
A CASE THAT REVEALED THE CRACKS
What appeared to be a routine invocation of Talaq-e-Hasan exposed deeper legal and theological concerns. The petitioner received a detailed “divorce notice” drafted and sent by her husband’s advocate—not by her husband. Yet classical Islamic jurisprudence requires a personal pronouncement, spaced over time to encourage reflection and reconciliation. The spirit is deliberation, not delegation.
By outsourcing the first pronouncement to a lawyer, the safeguards of the practice were reduced to paperwork. The talaq thus failed two tests at once: it was procedurally arbitrary and internally inconsistent with the very religious doctrine it claimed to follow.
The petitioner went further, arguing that Talaq-e-Hasan itself—by granting unilateral divorce rights only to men, without reason or oversight—violates constitutional guarantees of equality, dignity, and non-discrimination. The lawyer-sent notice simply illustrated how easily the practice can be misused, especially against women with limited legal access or awareness.
RECONCILING FAITH AND FUNDAMENTAL RIGHTS
The Talaq-e-Hasan challenge underscores a fundamental constitutional dilemma: How far may courts scrutinise personal law practices when they appear to undermine equality and dignity? And how can they intervene without being accused of trespassing into theology?
Indian jurisprudence has wrestled with this tension before—from Shah Bano to Sabarimala, Joseph Shine, and the striking down of instant triple talaq. Each case reaffirmed that individual rights cannot be sacrificed at the altar of tradition. Yet, the Court has also exercised caution, aware that judicial overreach in religious matters can deepen social fault lines.
During the hearing, the bench asked pointedly: “Is this how dignity is upheld in 2025? Should a civilised society allow this?”
The Court’s remarks reflected a deeper constitutional anxiety. Article 25 protects religious freedom, but Articles 14, 15, and 21 protect equality, non-discrimination, and dignity. A system that allows a woman’s marriage to be dissolved by a unilateral pronouncement—sometimes without her husband ever speaking to her—sits uneasily with the promise of equal citizenship.
HOW THE SUPREME COURT IS DRAWING THE LINE
On November 19, the apex court made clear this is no routine personal law dispute. Its first concern was the mode of divorce itself. How could something as personal as the dissolution of marriage be delegated to an advocate’s notice, unsigned by the husband? Such outsourcing, the bench suggested, strips the process of responsibility, dignity, and reflection.
The judges also highlighted the ambiguities created by third-party communication—ambiguities that can devastate a woman’s ability to claim maintenance or even assert her marital status. While an educated woman may reach the Court, many others cannot.
Beyond procedure, the bench questioned the compatibility of unilateral divorce with modern constitutional values. Recognising the gravity of the issues, the Court signalled that the matter may require a five-judge Constitution bench, placing it alongside landmark interventions in personal law.
The result is not yet a verdict, but a clear judicial shift: an openness to interrogate long-standing doctrines—not to undermine faith, but to ensure faith does not become a shield for gender inequality.
THE LARGER QUESTION
Ultimately, this case tests India’s democratic vision. Will personal law bend when it collides with fundamental rights, or will religion continue to occupy a semi-autonomous space beyond full constitutional scrutiny? Can India uphold pluralism without asking women to bear the cost of tradition?
The Court’s eventual answer will determine not only the fate of Talaq-e-Hasan, but the shape of India’s constitutional conscience.
—The writer is a New Delhi-based journalist, lawyer and trained mediator
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