India criminalizes instant divorce among Muslims

As India grapples with a Hindu nationalist government with a full majority, a change in law that bans instant divorce among Muslims is creating a global debate. And now that the government has also gone ahead and voided the constitutional autonomy of its only Muslim-majority state, the debate is getting louder.

On July 30, the Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019. It awaits the President’s assent, a formality to make it into law.

Then if a husband pronounces the word talaq (divorce) thrice in one setting to his wife, whether orally or in written form including via electronic communications, that will be a criminal offense. Under the law, the husband can be imprisoned for up to three years and a subsistence allowance will be given to the wife and the children.

Since the Supreme Court had already ruled that any pronouncement of triple talaq is void before the law – does not divorce the couple – critics say criminalizing the practice is overkill aimed at hurting Muslim men and not helpful to Muslim women.

The history

The legitimacy of instant divorce has been controversial in India for decades. One early legal milestone in protecting the rights of Muslim women was the Shah Bano case, which upheld their right to alimony. Even that ruling triggered a political debate over the interference of the judiciary in Muslim personal laws.

In the 2017 case of Shayara Bano, the Supreme Court finally invalidated the practice of triple talaq. The court said that it was a violation of Article 14 of the Indian Constitution, which provides for equality before the law.

Despite the court ruling, the Narendra Modi-led government tried repeatedly to pass a criminalization bill. Until now the upper house of Parliament always blocked it, but this time the bill passed with 99 members in favor and 84 against.

This was one of 14 bills that were approved in haste and with zero scrutiny by the select parliamentary commission.

Modi’s Hindu nationalist Bharatiya Janata Party has often been accused of being biased against Muslims and pushing policies that in the guise of empowering them instead leave them vulnerable. Another example is this week’s revocation of Article 370, which had provided a degree of constitutionally mandated autonomy for India’s only Muslim-majority state, Jammu and Kahsmir.

Triple Talaq elsewhere

Many countries have abolished instant divorce and provided remedies in civil – not criminal – court proceedings.

Pakistan banned the instant divorce practice after recommendations by a seven-member commission in 1956. However, it passed marriage and divorce legislation similar to that of Egypt, where the husband must pronounce talaq in three successive menstrual cycles.

Tunisia, on the other hand, under its Code of Personal Status 1956 states that the institution of marriage comes under the state and judiciary. Hence, the husband cannot verbally divorce without explanation.

Indonesian law states that divorce can only be executed by a court decision.

Sri Lanka, although not a Muslim dominated country, requires that the husband give a notice of his intention to a qazi (Muslim judge) and the relatives of the partners, elders and other influential Muslims of the area. This is done to encourage rethinking, reconsideration and reconciliation.

In Saudi Arabia, a new law was recently passed under which women must at least be notified by text message if they are divorced. The new law, according to the government, is to protect them from having their marriage ended without their knowledge.

‘Targeting men’

Civil society groups in India have charged that the bill is regressive and is aimed at targeting the men of a particular community. Activists have called the bill a ‘”complete charade” and said that they will petition the President not to sign it into law.

Their statement read: “We the undersigned groups and individuals condemn the government’s attempt to criminalize Muslim men in the guise of protecting Muslim women. We stand today in strong opposition to the Muslim Women (Protection of Rights of Marriage) Bill, 2019, which has been pushed through the Rajya Sabha in great haste by this government. Why was it not sent to a select committee?”

Harsh Mander, an activist who works with survivors of mass violence and is one of the signatories, said he is happy with the annulment of the custom but it should remain a civil court matter. He explained, “Under this law even if the husband is imprisoned, they will still remain married. Therefore, the situation of women for whom this bill is enacted will remain unchanged.”

Mander added: “If a Hindu man abandons his wife there are no consequences. But now if a Muslim man abandons he will be imprisoned for three years. This shows that the bill is to target the men of the Muslim community.”

The opposition requested that the bill be sent to the select committee. But the request was rejected, following which Janata Dal (United) and All India Anna Dravida Munnetra Kazhagam parties staged a walkout, bringing down the majority mark required to pass the bill. This made passage of the bill easier for the ruling BJP.

During the parliamentary debate, Leader of Opposition Ghulam Nabi Azad said, “When the Supreme Court has said that it is nullified, then why are you saying that this is valid? Those who are enthusiastic about this law, try to be with your partner after one of you has been sent to jail for a period of three years. This law is just greed for power.”

When those convicted leave jail, “they will either commit suicide or become dacoits [robbers] and thieves, that is the intention of your bill,” Azad said.

Law minister Ravi Shankar Prasad, moving the triple talaq bill, said, “The proposed legislation should be not seen through a political prism or vote-bank politics, as it aims at ensuring gender dignity, justice and equality.” He added that it is for “ensuring justice to women, dignity and empowerment to women and to ensure gender dignity and equality.”

All India Majlis-e-Ittehad-ul-Muslimeen MP Asaduddin Owaisi in opposing the bill, said, “You have said in the bill that the marriage of a couple would be legal even if a man gives triple talaq to his wife. You have proposed three years in jail for the man if he gives triple talaq to his wife. Who would give maintenance to the woman when her husband is in jail? Should she still wait for her husband to come out of jail?”

“The Supreme Court,” he continued, “has decriminalized homosexuality, adultery and you are about to criminalize triple talaq. You are sure to form a New India! The Supreme Court has even said that instant triple talaq is invalid. You are penalizing the women! You are expecting the woman to keep waiting for three years until the husband comes out of jail.”

Prasad in turn cited the legislation that bans dowry and multiple marriages by Hindu men to justify the three-year jail term to those who practice instant talaq.