A Battle Finally Won: Indian Court Bans Practice Of Instant Divorce, In A Move Labelled ‘Historic’ By Narendra Modi

India’s Supreme Court has ruled that the practice of instant divorce in Islam, formally known as ‘triple talaq,’ is in violation of the Constitution, thus marking a significant victory for women’s rights campaigners. The five-judge court bench repealed the practice of instant triple talaq, citing its contravention of Constitutional morality, most notably Article 14 of the Indian Constitution, which upholds equality before the law. In a 3-2 majority decision, the Supreme Court described the practice as being ‘un-Islamic’ and ‘arbitrary.’

Moreover, the divorce laws in Islam remain a point of contention between differing scholars, although most Islamic countries, including Pakistan and Bangladesh, have banned triple talaq, which gives a Muslim man the permission to divorce his wife in minutes by uttering the word talaq (divorce) three times. The practice of triple talaq finds no mention in the Quran or Shari’ah law, with most Islamic scholars saying that the Quran clearly expresses how to issue to divorce, which is that it must be spread over a waiting period of three months (called the iddah in Arabic), thereby allowing the couple time for reconciliation and deliberation. The custom of triple talaq has nonetheless continued in India, much to the chagrin of women’s right activists who have tirelessly campaigned against the hasty measure, which enables the man to terminate a marriage ‘whimsically and capriciously.’ As such, the courts’ decision marks the culmination of a spiralling movement that was initiated by the Mumbai-based ‘Aawaz-e-Niswaan’ group (The Voice of Women) that started campaigning three decades ago. Since then, Muslim women across India have established various NGOs and coalitions offering solidarity and legal support.

Meanwhile, presently, the Bharatiya Muslim Mahila Andolan (BMMA), the Beebak Collective, an umbrella of women’s rights groups, and other groups have petitioned the court on triple talaq. Shayara Bano, one of the main petitioners, urged people to welcome the decision and not politicize the matter. She declared to reporters that she ‘ha[s] felt the pain when family breaks. I hope no one has to go through this situation in future.’ To expand, Bano’s husband divorced her by writing the word talaq three times in a letter two years ago.

Though the majority of reactions have been overwhelmingly positive, there remain notable uncertainties regarding just how much this court decision will truly empower Muslim women in India. It is indeed true that the ruling protects the rights of women who face the threat of being discarded by their husbands without any due reflection. Others in India, however, remain concerned that the abolition of triple talaq will shackle them in abusive marriages, with no hope of escape. Shamshad Begum, a 58-year old domestic worker in Mumbai, has been apprehensive ever since the verdict was announced. She has been suffering through domestic violence for 35-years and has spent years persuading her husband to divorce her through triple talaq. Though triple talaq can only be uttered by men, Islam permits women to divorce their husbands through khula, where the wife returns her mehr (bride price) to the husband to terminate the marriage. In Ms. Begum’s experience, however, this type of divorce is entirely controlled by the religious leaders, leaving the woman essentially powerless.

In Begum’s own words, ‘I have tried giving my husband khula several times, but the maulvis (religious leaders) always say that they can grant it only if my husband personally comes before them, which he never does.’ She added, ‘I used to have hope that he would some day agree to just divorce me, but now even the Supreme Court is not on my side.’

With that said, for many Muslim women, tragically the triple talaq is their only route out. The fact that many women are voicing their anxieties over the court’s decision, points to a deeper societal, or even theological issue that remains unresolved, which is that a woman’s only avenue for initiating a divorce (through the khula) is often usurped by men of the clergy making decisions for her. Then, perhaps, if Muslim women generally had more faith in judges to uphold their Constitutional rights and fight their case, the reaction in India would be more uniformly positive. As such, for as long as women feel that the power of terminating a marriage is, in essence, never really their own, the momentous ruling on triple talaq will occupy an ambivalent status in the minds of many.

Hina Khalid