The ramifications of Supreme Court’s judgment on triple talaq
Married Muslim women in India have been living in fear for centuries because it has happened to so many of them. What started off as a simple quarrel between husband and wife resulted in instant divorce as the husband uttered, “Talaq, talaq, talaq.”
The controversial triple talaq (the Arabic word for “divorce”) has been the source of much grief and fear among Muslim women because there have been cases where it has been pronounced through letters, couriers and, as technology advanced, through mobile messaging, WhatsApp, Skype and Facebook.
For Muslim men it had been an easy way to end a marriage and move on. They didn’t have to pay any alimony, also thanks to Muslim law as practiced in India that allows maintenance to be given to an ex only during the 90-day period after the divorce known as the iddat.
But this Tuesday, August 22, 2017, in a landmark judgment passed by the Supreme Court in India, triple talaq was declared unconstitutional in a 3-2 verdict by a bench of five judges. The decision was based on the argument that talaq-e-biddat, as the practice is called in full, does not exist in the Koran.
There now is an injunction on triple talaq for six months, within which due legislative procedure is expected to take place. The central government had told the bench that it would regulate Muslim marriages by a law if the court found the triple talaq invalid. Now it is up to the Indian Parliament to formulate such a law.
Egypt was the first country to abolish triple talaq in 1929, and other Muslim countries including the United Arab Emirates, Jordan, Iraq, Yemen, Pakistan and Bangladesh, 22 in all, have already done away with the practice. It is truly surprising that for a secular country like India it took so long to take the step to ban this practice that promotes inequality between the sexes.
How women have been suffering
One single police station in Hyderabad, a city with a dense Muslim population, receives 10 complaints regarding triple talaq every day on average. The complaints are mostly about husbands living in the Persian Gulf region giving talaq over WhatsApp or e-mail and denying any kind of financial assistance.
Husbands usually say that they have paid the agreed mahr on the wedding night, which is money paid by the groom’s family to the bride that becomes her property, and they believe that’s good enough, so he does not need to pay more. The mahr can vary from 1,000 to 25,000 rupees (US15-$390) and the woman is expected to stash it away for the rainy day that her husband might impose on her.
But a survey conducted by the Bharatiya Muslim Mahila Andolan (BMMA, or Indian Muslim Women’s Movement) showed that more than 40% of women got less than 1,000 rupees as mahr and 44% did not get any at all. All these cases are expected to get a second look after Tuesday’s landmark judgment.
But the worst affected are probably women who have been trying to save their marriage through a nikah halala. This is a practice by which a divorced woman can marry another man and consummate the marriage after the iddat period. She can then get a divorce from that man and remarry her original husband.
In a recent exposé by the television network India Today, the frightening and regressive practice of some Muslim men who head religious institutions getting married to women and consummating the marriage for a night and then divorcing them, all for a fee, has come to the fore.
The fees charged are between 20,000 and 150,000 rupees, and many mawlawis (religious scholars) say they have been doing this frequently, that is, “marrying” and sleeping with women for a night and then divorcing them so that they can remarry their wives.
Meena Kumari (1933-72), a Bollywood actress of yesteryear, was madly in love with director Kamal Amrohi, and they got married only to be divorced through triple talaq, which Amrohi uttered in a fit of rage. But the couple wanted to reconcile, so after the iddat period, Kumari married Amrohi’s friend Aman Ullah Khan, actress Zeenat Aman’s father, divorced him and married Amrohi again.
Muslim women surveyed
The BMMA is a rights organization that has a membership of 100,000 across India. It conducted a study on women’s views on India’s Muslim Personal Law and surveyed 4,000 women across 10 states. The survey found that 82% of women did not have property in their name, 78% were homemakers without any income, and 55% had married below the age of 18. It also found that 53% of the respondents had faced domestic violence.
An overwhelming 91% said Muslim men should not be allowed to practice polygamy and 92.1% wanted a total ban on verbal/unilateral divorce, while 93% wanted an arbitration process to be mandatory before divorce and 72.3% wanted such a process to last between three and six months.
Of the 525 divorced women polled, 65.9% were divorced verbally and 78% unilaterally, where the husband and his family made the decision to terminate the marriage.
This study establishes that many Muslim women in India are denied justice and fair treatment in matters of family and marriage. They suffer from such practices as under-age marriage, verbal divorce and polygamy in the absence of a codified law and knowledge of Koranic principles. They suffer injustice in family matters owing to misinterpretations emanating from patriarchal mindsets and interests. Community justice mechanisms may or may not be friendly places for a woman, and she is left with very little legal recourse.
Shah Bano case
In 1978, Shah Bano, a 62-year-old woman who was the first wife of Mohammed Ahmed Khan and had five children with him, was divorced through triple talaq and asked to move out of the house with her children. A report this month in the Indian Express detailed the case as follows:
Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she isn’t able to fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
Khan’s argument was supported by the All India Muslim Personal Law Board, which contended that courts cannot take the liberty of interfering in those matters that are laid out under Muslim Personal Law, adding it would violate the Muslim Personal Law (Shariat) Application Act, 1937. The board said that according to the Act, the courts were to give decisions on matters of divorce, maintenance and other family issues based on Shariat.
Justice Y V Chandrachud said in his decision at the time: “The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law, and morality cannot be clubbed with religion.”
This was a landmark judgment once again because it looked beyond religion to consider equality and humanity, but the Congress government led by Rajiv Gandhi, which had come into power in 1984, was more keen on appeasing religious sentiment than taking a step forward in establishing equality in society.
The government passed the Muslim Women (Protection of Rights on Divorce) Act in 1986, and through this law overturned the Shah Bano verdict and declared that maintenance could only be given for the iddat period. If a woman needed financial assistance after that, she could turn to a Waqf Board, which oversees charitable endowments under Islamic law.
How the tides turned
Shayara Banu, a 35-year-old Muslim mother of two teenagers, became a mental wreck after fearing triple talaq for all of the 14 years she was married to Rizwan Ahmed. The constant threat of talaq was interspersed with an attempt to throttle her and six or seven forced abortions that led to infections. But the inevitable happened. Ahmed sent her off to stay with her parents, did not take her back home for six months, and couriered her the triple talaq decision.
A postgraduate student in sociology, Shayara Banu recovered from the initial shock and decided to fight it out in court. In her petition to the Supreme Court in which she challenged triple talaq, polygamy and nikah halala, she sought equality before the law and protection against discrimination on the basis of her gender and religion.
In April 2016, Supreme Court lawyer Balaji Srinivasan told the Indian Express that there had been public-interest litigations filed by non-governmental organizations and individuals in India’s top court before but “those didn’t hold water, as they weren’t filed by an affected party or because they pleaded that [a] Uniform Civil Code be introduced. Shayara’s is the first such case where a Muslim woman has challenged a personal practice citing fundamental rights guaranteed by the Indian constitution.”
So the Supreme Court’s latest verdict comes as a huge victory to Shayara Banu and also for organizations like the BMMA, which last year submitted a memorandum to the National Commission for Women signed by 50,000 women calling for abolition of triple talaq.
Along with Shayara Banu, gutsy women such as Ishrat Jahan, Gulshan Parween, Afreen Rahman and Atiya Sabri have all petitioned in court seeking justice, and they are all winners today.
The road ahead
This landmark judgment can only be implemented if the Indian Parliament is proactive enough to legislate within six months. In my opinion, draconian laws that challenge the fundamental rights of human beings in the name of religion should not exist.
India is a secular country and there should be a uniform civil code governing all. In the Hindu religion also there used to be the custom of polygamy, sati (widows’ self-immolation) and child marriage, but all that was abolished so that society could move ahead in a positive direction.
Polygamy should be abolished among Muslims too, and the focus should now be on educating Muslim women, and making them financially independent so that they can help build a stronger nation.