Asia-Pacific, India

When Women Won: Triple Talaq Now Unconstitutional In India

“Punish us if you want, but triple talaq will remain valid in India”, The Jamiat Ulama-i Hind, the leading Islamic Organization in India, proclaimed after the Supreme Court’s Ban on triple talaq. Challenging the 1400-year-old practice, the Muslim Women’s quest for equality filed seven petitions including one by a woman who was divorced through WhatsApp.

For one divorced Muslim man in India, there are four divorced Muslim women that mean among the divorced women in India about 75% are Muslim women. These 75% Muslim women are divorced by their husbands through instant talaq or talaq-e-mughallazah (the irrevocable divorce) or talaq-e-biddat.

What is Instant Triple Talaq?

Instant talaq or talaq-e-biddat is a 1400-year-old practice which allows Muslim men to divorce their wife by saying talaq three times. The pronouncement of the word can be written or oral and with recent times, even digital. Instant talaq does not require the man to give any cause or cite any reason for the divorce. He can even divorce, even if his wife is not present.

Nevertheless, after the pronouncement, arbitration is required to process the divorce smoothly. Women can also divorce her husband by asking for a “khula”.

Illegal in 20 Muslim countries, this practice is followed by the Indian Muslim men who follow the Hanafi Islamic school of law. Many Muslim women have been divorced through Skype, Facebook, and WhatsApp.

Why is Triple Talaq in the News?

Over the years, this practice has become the source of controversy and debates. Recently, the Indian Supreme Court’s five bench judges have decided in the ratio of 3:2 to ban the practice of triple talaq in the country. The bench had five judges from various religions: Hinduism, Christianity, Islam, Sikhism, and Zoroastrianism. While Bharatiya Muslim Mahila Andolan (BMMA), commenced a campaign to ban the instant talaq and “nikah halala” – (a practice where divorced women can only go back to her first husband if she remarries and consummated her second marriage), there are a few Muslim women groups who do not want any changes in the personal Muslim laws or implementation of Uniform Civil Code (UCC).

Gender Issue

Activists all around the country have highlighted their reason for wanting to ban talaq-e-biddat. Various cases of husbands misusing their power and divorcing their wives through online platforms have come into light.

The reason for this issue being the highlight in the nation is because of the gender injustice. India’s patriarchal society keeps women on a tight leash. No matter the religion, women are considered subservient to men around them. Whether it is their fathers, husbands or brothers, they often end up agreeing to the whimsical wishes of the men folk. In the Muslim community, triple talaq gives men another reason to keep women under their thumb.

“My creator cannot create me in a way that I am subservient to another human being. My creator cannot make me secondary to a man just because I’m a woman,” said BMMA co-founder Noorjehan in January. “That gave me strength to question patriarchal attitudes. I’m equal to anybody in this world.”

The reason to fight the decision by the Muslim women all around the country was to get equal rights in the society and in the household. This practice not only violates various fundamental rights of women as a human but desecrate their dignity too. Numerous women also want to get the divorce for various reasons. If done with the consent of both parties, divorce is accepted. However, when divorce is without the consent of either of two parties, it creates a crisis.

The case of Shayara Bano became the game-changer. She asked for a redress when her husband divorced her through triple talaq practice. She went to the clergy. The clergy told her ‘you don’t have fundamental rights because of your faith’. The logic that being a woman of Muslim faith strips you of all fundamental rights as a human being, is not only illogical but unethical.

Does Quran say so?

Then and again, Muslim women have said that as Quran does not have any provision of instant talaq, it is not against the Sharia Law.

“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 Soman told Al Jazeera in a 2015 interview.

Quran calls for reconciliation among the estranged husband and wife which should go for 3 months. No reconciliations attempts are made when men divorce their wives through instant talaq on WhatsApp, SMS or Facebook.

The Court’s Decision

Justice S. Abdul Nazeer and Justice Khehar scrutinized 268 pages out of 272 pages to examine instant talaq from every possible perspective — legal, constitutional and theological. It was examined under Constitution’s Article 25 (right to religion) to make sure whether it satisfied the constraints of the article. Interference in matters of ‘personal law’ is considered judicial examination.

However, judges also saw that the practice was “arbitrary and gender discriminatory”, hence a separate law needs to established to curb the practice just as it was done for abolishment of sati, devadasi, polygamy etc…

In the end, the court did not accept the argument that just because it had been custom for 1,400 years, it should still be acceptable now and declared the practice of triple talaq unconstitutional.

About Shagun Benipal

Writer by day, reader by night, Shagun is known for her love of coins, old photographs and books. She loves to share her thoughts on politics, world and space.

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