Life could be about to change for millions of oppressed Muslim women in India after the country’s Supreme Court began hearing petitions challenging a patriarchal mode of divorce.
Known as “triple talaq”, this practice allows a Muslim man to divorce his wife by uttering “talaq” (divorce) three times before his wife and a witness. It leaves the divorced women destitute.
“Instant talaq” is even allowed to occur by phone call, text message, e-mail, social media post, speed post, or via a notice in a newspaper.
As the hearings started on Thursday, the Supreme Court bench – consisting of five judges from different faiths – deliberated over whether the practice is fundamental to Islam and whether it is a constitutional right. On Friday, it described triple talaq as the most undesirable form of dissolving marriage among Muslims and compared it to the death penalty. The hearings will go on each day for two weeks and the court’s ruling is expected in two months.
Of the seven petitioners, five are Muslim women’s groups who are demanding a ban on instant talaq, which they say is un-Islamic as it is not mentioned in the Quran.
They want cases related to divorce to be handled by regular courts and not by Muslim courts. If 22 Islamic countries – including Pakistan, Iran, and Egypt – can ban triple talaq, why not India, they ask.
The orthodox and powerful All India Muslim Personal Law Board (AIMPLB) regards triple talaq as a religious and social practice which falls outside the ambit of judicial review, however. They object to the apex court meddling with the practice and see the current court battle as a conspiracy started by right-wing Hindu groups. The board is willing to punish those who misuse triple talaq but against women being allowed legal recourse. It wants the issue to be resolved by Parliament through reforms to the Muslim Marriage Act.
The views of some Muslim clerics on triple talaq are, frankly, weird. Talking of polygamy, a related issue, one – Hasani Nadri – says it is a blessing and not a curse for women. Another cleric says triple talaq is like sending an invitation card.
With clerics and the personal law board at odds with a growing number of Muslim women, it is feared politicians may be tempted to hijack the issues, projecting themselves as as the saviors of Muslim women. The voice of Muslim women themselves might get drowned in this cacophony.
The ruling Bharatiya Janata Party (BJP) claims it stands for justice, equality and the dignity of Muslim women. The Congress party, under the late former prime minister Rajiv Gandhi, initially took a similar view in the Shah Bano case 32 years ago.
Sixty-two-year old Shah Bano won her case against triple talaq in 1985, with the apex court ruling that she was entitled to maintenance, just like any other Indian woman. However, fearing a loss of Muslim votes, the Congress government took a U-turn and approved a law in 1986 that set the milestone ruling aside.
The present court battle is linked to the Shayara Bano case of 2016. After her husband divorced her using instant talaq last year, she moved the top court against the practice, as well as polygamy and ‘nikah halala’ (the practice of forcing a female divorcee to marry someone else and consummating the marriage, then getting a fresh divorce in order to make it allowable for her to remarry her initial husband).
The Supreme Court will not be hearing the polygamy case for now.
In Shah Bano’s case, the Muslim personal law board opposed maintenance and mobilized thousands of Muslim protesters. The question now is whether its agitation can be ignored. If the top court order does not order changes in Muslim personal law, then it will be up to Parliament to amend laws to ensure justice for Muslim women.