India’s Muslims have mixed feelings about Supreme Court ruling on ‘triple talaq’

Photo: A Muslim bride looks on as she waits for the start of a mass marriage ceremony in the western Indian city of Ahmedabad March 21, 2015. A total of 112 Muslim couples from various parts of Ahmedabad on Saturday took wedding vows during the mass marriage ceremony organised by a Muslim voluntary organisation, organisers said. REUTERS/Amit Dave

Some are angry that community leaders have not taken up cudgels against the practice; others feel it does not go far enough and address financial issues

India’s Muslim community has broadly welcomed the Indian Supreme Court’s ruling putting the brakes on the practice of ‘triple talaq’ for six months, but many feel that this should have been implemented by the community itself taking into account the hardships on women by ‘instant divorce’.

Under the triple talaq practice, a man can irrevocably divorce his wife by simply uttering the word ‘talaq’ three times in one session even in her absence, without citing any reasons. While it has been considered legal and binding, it is not, however, the most widely followed method. Other judicial and non-judicial forms include practices under which divorce is granted after three separate sessions with at least a month’s gap between each. This and other types of processes provide the couple the opportunity to reconcile or revoke the divorce before the process is complete. Women also have the right to divorce, in some conditions unilaterally, under the Dissolution of Muslim Marriages Act, VIII of 1939. 

“I welcome the Supreme Court’s verdict on triple talaq as this should not be practised anyway,” said Zakir Laskar, a young IT professional working for Hyderabad-based technology giant Infosys. But he told Salaam Gateway he would rather have seen this practice banned by the Muslim community itself, “instead of somebody else doing it for us”. 

Photo: Brides pose as they display their hands decorated with henna before taking their wedding vows during a mass marriage ceremony in which, according to its organizers, 131 Muslim couples took their wedding vows in Ahmedabad, India, February 26, 2017. REUTERS/Amit Dave

Defending the practice, All-India Muslim Personal Law Board, which opposed the petition, told the court that marriage contracts can be individually negotiated to include provisions consistent with Islamic law to contractually rule out triple talaq by the husband, or stipulate that the wife can also pronounce triple talaq. The Board is currently running separate signature campaigns for men and women saying that “We’re fully satisfied with the commands of Islamic law, especially on Islamic orders related to nikah, talaque, khula [divorce initiated by women, mutual consent], faskh [dissolution], and wirasat (inheritance). We’re fully satisfied and strongly deny any possibility of change in them...”

Women’s rights groups that were fighting to abolish triple talaq are happy with the verdict but feel community leaders should have played a bigger role in the process.

“There are many women who are victims of this practice,” Nagma Shaikh, a Bengaluru-based social activist running the NGO Karnataka Muslim Mahila Andolan, told Salaam Gateway. She urged community leaders and Islamic clerics to listen to women’s problems carefully, and “resolve them at the community level”.

Shariq Nisar, an Islamic finance expert who also keeps an eye on the socio-economic issues of the Muslim community in India, welcomed the judgment and added: “But Muslims also have to look within themselves. They cannot use Shariah for their advantage, without discharging the responsibilities expected of them by Shariah.”

While a majority of Muslims agree that triple talaq is no way to end a marriage, some are sceptical of the right-wing Bharatiya Janata Party federal government’s decision to bring this case to the Supreme Court when many other serious issues relating to employment, education and health remained unattended.

“If the government had focused on the bigger issues first, I would have said that they have the right intention to help the community,” said Laskar, adding that triple talaq does not affect a very large segment of India’s 172 million Muslims.

According to 2011 census data, the latest available, India has 1.35 million divorced persons, of which 962,810 are Hindu and 269,609 are Muslims. The divorce rate among Hindus and Muslims is 0.76 percent and 0.56 percent respectively, the data show.

Photo: Grooms sit and wait for their turn during a Muslim mass wedding in Ahmedabad, India November 20, 2016. REUTERS/Amit Dave

PERSONAL LAW

India’s Muslims enjoy constitutional approval to follow their own set of rules and regulations pertaining to marriage, divorce and property inheritance under the Muslim Personal law (Shariat) Application Act, 1937. 

Some consider the triple talaq ruling as interference with their personal law, and fear that it may be part of a larger agenda to implement a Uniform Civil Code that will eventually take away their right to follow their own religious laws. Several men Salaam Gateway approached for comment angrily refused to comment.

“A lot of people have a feeling that the government is trying to interfere with their personal law. There is anger among some section of the community. The personal law is about someone’s belief, which is very different from what the court says. So they feel the government is interfering with their religion,” said lawyer Yasmin Ali, who practices at the Bombay High Court.

However, she feels it’s a very positive judgment and “people should take it in the right spirit”.

“As long as the court is not interfering with our personal law and it’s being done the way it’s been prescribed in the Quran, I think nobody should have any objection to that,” Ali told Salaam Gateway.

LEGAL IMPLICATIONS

Experts say the Supreme Court ruling, which has to be converted into law by Parliament within six months, is expected to have a bearing on all pending and ongoing cases of triple talaq across India.

While there is no specific information on the number of such cases, Department of Justice data show there are 377,823 cases of matrimonial disputes pending in various family courts across India at the end of November 2016. Family courts, which are set up to hear cases relating to divorce, alimony and child custody, also handle matrimonial disputes among Muslims.

“The ruling will certainly impact the cases of triple talaq in which judgement has not been pronounced yet. And, for the next six months, Muslim men will restrain themselves from giving instant talaq to their wives,” said Ali, who is currently arguing some cases of triple talaq before the Bombay High Court.

Ali is also in charge of the Mahila Takrar Nivaran Kendra (Women's Conflict Resolution Centre), a joint initiative of Mumbai Police and the Mohalla Committee, which arbitrates in cases related to domestic violence, dowry harassment, gender inequality and triple talaq.  Ali says she gets around 200 cases of triple talaq every year at the Kendra and through her private law practice.

Ali cites a case where a woman was divorced through triple talaq without her knowledge. “The lady came to know about her divorce when her husband and in-laws one day told her to leave the house with her kids.”

The woman described the incident to Salaam Gateway: “When they tried to throw us out of my house, I called the police. And at the police station, I was told that he has already divorced me four months ago. How can he divorce me without me even knowing about it?”

The case is now being heard by the Bombay High Court. “I want to stay peacefully with my kids in this house for which I have also contributed, and want him to give us maintenance,” the mother of two teenagers said. She said she had to quit her teaching job to fight this battle.

Photo: Newly married Muslim couples pose after taking their wedding vows during a mass marriage ceremony inside a shrine in the western Indian city of Ahmedabad April 13, 2014. A total of 151 Muslim couples from various parts of Ahmedabad took wedding vows during the mass marriage ceremony organised by a Muslim voluntary organisation, organisers said. REUTERS/Amit Dave

PROTECTION AFTER DIVORCE

Social observers say the community has a long way to go when it comes to addressing issues faced by Muslim women after divorce. “No one is discussing issues of women’s financial stability, alimony, maintenance and others,” said Azam Khan, a Mumbai-based marketing professional, who says he takes a keen interest in Muslim social issues.

Instead of triple talaq, he said, if the court had talked about alimony, and stated that women “should get this much in property or this much every month as maintenance, then there would have been some protection for them”.

While the Muslim Personal Law pertaining to alimony prescribes various entitlements and maintenance that a woman should get after divorce, Ali said, “many do their own interpretations to deny these rights to their estranged wives”.

“Some clerics say that women are entitled to get maintenance only for the iddat period, which is three months and 10 days. But if you read Surah An-Nisa, it is clearly said that when you are leaving your wife, don’t take back all the things which you have given to her; pay her mehr; and make sure that she is well provided for,” she said.

But in many cases, she added, husbands simply send a demand draft of just 1,500 Indian rupees ($24) for the iddat period and try to wash their hands of any future responsibilities.

Ali says she has seen cases where husbands give oral talaq, sometimes through SMS, registered post or telephone, and try to kick their wives out of the house. “They also don’t give back their gold jewellery and other belongings. In such cases, we have to use various domestic violence and dowry harassment laws under Sections 406, 498 and 125 which are applicable to every woman, irrespective of her religion,” said the lawyer.

Ali agrees this verdict doesn’t address the maintenance issue. “But it will help deter men from throwing their wives out of the house. This is not a permanent solution, however.”

IMPLEMENTATION

One of the challenges relates to whether the community will accept the ruling or the law based on it. In the absence of constitutionally supported Shariah courts, it may become difficult to implement laws that ensure proper obedience of Shariah, especially when an established social practice is being challenged, said Ali.

“There are many sects within the Muslim community itself and every cleric interprets the Quran and Shariah in his own way, based on his school of thought,” she said.

The All-India Muslim Personal Law Board, which was one of the petitioners that defended the practice of triple talaq before the Supreme Court, runs around 50 Dar-ul Quaza or Shariah courts in nine states, but their reach and acceptability remain limited. 

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