By Jeffrey Gettleman and Suhasini Raj
August 22, 2017
India’s highest court struck down a legal provision on Tuesday that allowed Muslim men to instantly divorce their wives, taking a stand against a practice increasingly deemed unacceptable in the Muslim world.
In India, Muslim men have been able to end their marriages by saying the word “Talaq” — Arabic for “divorce” — three times. They could do this in person, by letter or even over the phone. By contrast, a Muslim woman in India seeking a divorce must generally gain the permission of her husband, a cleric or other Islamic authorities.
The method of divorce was available only to men, who in many cases ousted their wives from their homes without alimony or other financial support. The practice is frowned on by many Muslims worldwide, and the case was being closely watched in India.
On Tuesday, by a 3-to-2 vote, a Supreme Court panel declared unlawful the provision that had allowed for Muslims’ instant divorce. Of those who voted against, two said the practice was unconstitutional and one said it went against Islamic law.
One of the dissenters was a Muslim judge; the other was the court’s chief justice, who urged Parliament to come up with a new provision.
The Muslim women who were plaintiffs had argued that the provision violated their fundamental right to equality under the Constitution. And while India’s Prime Minister, Narendra Modi, hailed the court decision as a “powerful measure for women’s empowerment,” some legal analysts were not so sure, saying the all-male panel had used language that was quite degrading toward women.
“The patronizing tone towards Muslim women in all the opinions is quite breathtaking,” Ratna Kapur, a law professor and author of a forthcoming book on gender and human rights, wrote on Facebook. “Women are talked about as if they are in need of protection, not in terms of their rights.”
She added, “Nearly every reference to the Muslim woman in the majority and dissenting opinions reduces Muslim women to ‘suffering victims.’ ”
The Supreme Court has often taken the lead in making landmark changes to Indian law. It has demanded that all states reshape their justice systems to make law enforcement independent from political interference. It has forced taxis in the capital to use compressed natural gas as fuel, to reduce pollution. Last year, it banned the sale of fireworks in the capital region to fight smog, and it required movie theatres to play the national anthem.
Although India’s Constitution guarantees equal rights to all citizens regardless of their religion, matters dealing with marriage, divorce, alimony and inheritance are handled differently by members of different religions. India does not have a uniform set of laws on marriage and divorce that applies to all citizens.
India is predominantly Hindu, but it has a sizable Muslim population. Many Hindus, seeing the practice of ending a marriage by uttering three words as an insult to women, welcomed the decision on Tuesday. Several Muslim groups, however, had been intent on preserving it, suspicious of any government efforts to chip away at what they see as their fundamental religious rights.
In recent years, the governing Hindu nationalist party, the Bharatiya Janata Party, has been accused of tolerating Hindu vigilantes who have attacked people for trading cattle and eating beef, and of trying to shut down many of the slaughterhouses that produce buffalo meat. The cow is a revered animal for a large section of Hindus, and many of those attacked have been Muslim.
Against this backdrop, some Muslim groups saw the instant divorce judgment as yet another setback. Some critics suspect that the Modi government’s position had less to do with supporting Muslim women than pleasing Hindu nationalists, who have long argued that the same laws on marriage and divorce should apply to all religious groups.
“This matter is not just about triple Talaq but also about the religious sentiments of the minorities of this country,” said Arshad Madani, president of the Muslim group Jamiat Ulama-i-Hind. “Muslims should be ready.”
There are no official statistics on the prevalence of instant divorce in India, but one study found that among a sample of more than 4,700 women, 525 had divorced, 404 of them through triple Talaq.
The Quran makes no mention of the Talaq method. The practice is outlined in the Hadiths, or sayings attributed to the Prophet Muhammad, which are regarded as less authoritative than the Quran but are influential in shaping Islamic doctrine.
Instant divorce is fading in most parts of the Muslim world. In many predominantly Muslim countries, religious leaders frown on the practice, noting that the Quran recommends that couples make a genuine effort to reconcile and resolve their differences before parting ways.
The National Congress party, which casts itself as secular and the guardian of minority rights and counts Muslims as a main constituency, has resisted challenging Muslim divorce practices.
In 1985, the Supreme Court ordered the husband of a 62-year-old divorced Muslim woman to pay her alimony of about $15 a month.
The Congress party, in power at the time, moved to nullify the court’s decision and pushed Parliament to adopt a new law shifting responsibility for supporting a divorced wife away from her husband after three months and to her relatives or Muslim charities.
That law was a grave disservice to Muslim women, according to Noorjehan Safia Niaz, co-founder of the Bharatiya Muslim Mahila Andolan, one of the Muslim women’s advocacy groups that filed a brief in the Supreme Court case.
Instead of making husbands responsible for helping support divorced wives, the new law left women “to beg at different places for maintenance,” she said in the 2014 study.
Ishrat Jahan, a plaintiff in the Indian case, said she had been crushed when her husband divorced her over the phone from Dubai, in the United Arab Emirates.
“Then he remarried in the village and snatched my children from me,” she said in a television interview.
She said she was extremely happy with the court decision. “I never thought this would happen,” she said. “My lawyers are also very happy.”