India Declares Instant Divorce Practice Unconstitutional

Until last week, Muslim men in India had the possibility to instantaneously divorce their wife by just pronouncing the word “Talaq” three times. However, a decision by the Indian Supreme Court has now banned the practice also known as ‘Instant Divorce’ or ‘Triple Talaq,’ declaring it unconstitutional. The Supreme Court’s deliberation has been celebrated as a step towards gender justice and a victory for Muslim Indian women who fought for years against the arbitrary application of Islamic law against women’s civil rights.

Furthermore, in 2015, Triple Talaq had already been ruled as being unconstitutional by the Supreme Court in a number of cases. However, last week, a five-judge bench examined whether the Islamic divorce practice “is fundamental to religion” and whether it is a fundamental right. The bench did not unanimously ban the practice, which Balaji Srinivasan, one of the lawyers on the case, called “disappointing.” Instead, three judges ruled that it was unconstitutional, while the minority issued a dissenting judgment that said it should be up to Parliament to pass legislation officially banning the practice.

Meanwhile, the controversy around Triple Talaq stems from how it is practiced in modern day societies, particularly, in India. According to Islamic beliefs, the practice should be the result of a deliberate and thoughtful decision that implies a coherent justification. Conversely, in several cases, men have given the command without any warning, often in a fit of anger and sometimes delivering the message through text or phone call. Rather than opposing the practice itself as a violation of women rights, activists have focused on the misuse of instant divorce by men as a reason to ban it.

With that said, the battle against Triple Talaq started in 2015 and was a combination of civil and political action. For example, in 2015, the Muslim organization, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban both Triple Talaq and “Nikah Halala,” which is a practice where divorced women, in case they want to go back to their first husbands, have to consummate a second marriage. BMMA found roughly 1 in 11 Muslim women were survivors of Triple Talaq, the vast majority of which receive no alimony or compensation. According to the findings of a BMMA study, more than 90 percent of the 4,710 women who were interviewed wanted a ban on unilateral divorce. In March, a million women put their signatures behind a petition against the practice sponsored by the Muslim Rashtriya Manch (MRM), an Islamic organization affiliated with the right-wing Hindu Rashtriya Swayamsevak Sangh (RSS). India’s Prime Minister Narendra Modi also showed support for taking legal action against Triple Talaq arguing that “India cannot allow the lives of Muslim women to be ruin[ed] by three words on the phone.”

While this custom is not universal in the Muslim world, nonetheless, several factors have permitted it to remain particularly popular among India’s Muslim community, especially among those following the Hanafi School of Thought. In addition, India has the world’s second-largest Muslim population, but, unlike other countries with significant Muslim populations, such as Pakistan, Bangladesh, and Indonesia, had yet to officially pass legislation outlawing Triple Talaq. The main reason for that was that India’s Muslim, Hindu, and Christian communities are permitted to follow religious laws in personal matters, such as marriage, divorce, inheritance, and adoption. India’s Muslim community is also generally poorer and less educated than others, which activists say has made it harder for women to mount legal and social campaigns against the practice.

Surprisingly, far from being universally considered as an act of gender justice, the ban also found opposition in the Muslim World. The All India Muslim Personal Law Board (AIMPLB), a non-governmental organization that aims to educate Muslims on the protection and application of Islamic laws, has opposed the move to ban Triple Talaq, claiming that divorce is not the main issue facing the Muslim community, the majority of whom are close to the bottom of economic and educational indicators in the country. The AIMPLB has opposed what it calls government interference in the personal laws of the Muslim community, who form nearly 14 percent of India’s 1.3 billion population.

Arguably, the ban should be interpreted as the first step in a longer and more complicated fight for the empowerment of women, and many more battles have yet to come. Furthermore, whereas the bigamy law for Hindus has not really helped Hindus in becoming less bigamous, one must understand that normative changes in the law do not really bring about any major social reforms. As such, the next step for gender justice is, therefore, that of creating the conditions for an attitudinal change among both women and men in India.

Benedetta Zocchi