India’s Supreme Court on Tuesday banned “triple talaq”, or instant divorce, practised by some in the Muslim community, saying it is “unconstitutional”.
Triple talaq is the practice under which a Muslim man can divorce his wife by simply uttering “talaq” three times. It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law.
This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months.
The government has cited the example of many predominantly Muslim countries, including Pakistan, that have banned triple talaq.
Why is it in the news?
The issue has attracted media attention in the past two years since a Muslim organisation, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban triple talaq and “nikah halala” – a practice where divorced women, in case they want to go back to their first husbands, have to consummate a second marriage.
“In the course of our work, we have regularly been approached by our sisters, complaining about mistreatment and misuse of the oral talaq system. In most cases, men go scot-free and believe their action is approved by the Quran,” Zakia Soman, one of the cofounders of the BMMA, told Al Jazeera in an earlier interview.
It has generated debate around the rights of Muslim women as the issue of divorce, marriage, and inheritance come under the purview of the Muslim Personal Laws. India has a provision for personal laws for all religious communities.
But the All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation that aims to educate Muslims on the protection and application of Islamic laws, has opposed the move to ban triple talaq and polygamy. The latter is illegal in India.
Critics say divorce and polygamy are not the main issues facing the Muslim community, the majority of whom are close to the bottom of economic and educational indicators in the country.
The AIMPLB has opposed what it calls government interference in the personal laws of the Muslim community, who form nearly 14 percent of India’s 1.3 billion population.
The Shariat Application Act was passed 10 years before India gained independence from the British colonial power in 1947.
But Indian nationals, including Muslims, can opt to marry under the secular Special Marriage Act enacted by the Indian parliament in 1954.
Islam considers marriage as a contract and it has laid down procedures on how to annul it. A woman can seek divorce under what is called as “khula”, while the husband can end the marriage by pronouncing talaq thrice, after which arbitration is required.
But activists have highlighted the misuse of instant divorce by men as a reason to ban it. Cases of husbands divorcing their wives through text messages and over phones have come to light.
According to the findings of a BMMA study, more than 90 percent of 4,710 women interviewed wanted a ban on unilateral divorce.
“None of the Quranic guidelines of discussion, arbitration, witnesses, specified time period or even a genuine attempt to resolve differences are being followed. In such circumstances, the question of alimony or the rights of children doesn’t arise,” Zakia told Al Jazeera in a 2015 interview.
So far there is little data on the number of divorces via phones and SMS, while the data provided by BMMA has been questioned not only for not disclosing the methodology but also sample sizes.
“Out of 4,710 people 525 divorces took place. Out of this only one divorce was by SMS. Therefore, they have played it out of proportion. Media has further portrayed as if every Muslim is divorcing through SMS,” Faizan Mustafa, vice chancellor of the National University of Law, told Al Jazeera.
“Nearly 41 percent of women themselves wanted divorce. If a woman herself wants divorce and husband gives, it is out of mutual agreement. It is a divorce by consent. In Islam it is known as Talaq-e-Mubarra. It’s OK.
“It is only when these two situations are not there, triple divorce will look bad. And, therefore, I would also say in that situation the better solution would be that the three pronouncements should be considered as one. So that there is a scope for reconciliation.”
Can triple divorce be banned?
A five-judge bench will examine whether the Islamic divorce practice “is fundamental to religion” and whether it is a fundamental right. Article 25 of India’s constitution grants the right of religion as a fundamental right.
Triple talaq has already been ruled unconstitutional by the Supreme Court in a number of cases, including in February 2015.
“I think that would be a very poor understanding of the law because banning is a legislative action,” Mustafa said.
He suggested instead polygamy should be made a crime for Muslims as well.
“But the bigamy law for Hindus has not really helped Hindus in becoming less bigamous. So one must understand that normative changes in law do not really bring about any major social reforms. You have to create those conditions; the attitudinal changes have to come,” said Mustafa.
What is the divorce and polygamy rate among Indian Muslims?
The Quran allows polygamy with strict conditions, but polygamy is the least among Indian Muslims when compared with other religious groups.
According to census data from 2011, the divorce rate among Muslims was 0.56 percent less than the Hindu community, which stood at 0.76 percent.
So far, the government has not conducted any survey on the extent of triple talaq among Muslims – a fact legal experts point out.
They say the government should form a committee of experts for Muslim law reform rather than seeking an immediate court ban, and conduct surveys to get a real sense of the problem.
Politics over triple talaq
Modi has urged leaders not to politicise the issue, but Swami Prasad Maurya from his ruling Bharatiya Janata Party (BJP) said last month that Muslims use triple talaq to satisfy their “lust”.
Rashtriya Swayamsevak Sangh – a Hindu far-right group and ideological head of the BJP – has been vocal in calling for these changes. It has been pushing for doing away with the idea of personal laws and replacing them with a Uniform Civil Code – a controversial proposal that Muslims have vociferously opposed.
Flavia Agnes, a prominent women’s rights lawyer, said triple talaq has become typical low-lying fruit that everybody can write on.
Speaking at a seminar at Aliah University in the eastern city of Kolkata, she said that illiteracy and lack of awareness were the biggest problems when it came to women rights.
“Talaq does not extinguish her economic rights, [the ban] is not a magic wand that will solve all her problems. We have created an image that Muslim women have no rights because husbands can pronounce triple talaq,” she said.
The Muslim Women’s Act of 1986 Act has a provision for “fair and reasonable settlement after divorce”, she said.
“The whole debate is skewed and political, catering to the ruling government’s Muslim bashing agenda, and media is a prime player in this.”
This article, first written in May, has been updated