By Niharika Mandhana
Mar 31, 2016
India’s Supreme Court is considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.
A panel headed by the chief justice that is hearing the petitions directed the government this week to release an official 2015 report that looks at the impact of some of India’s religion-specific laws on women’s rights and recommends legal reform.
Among the petitioners calling for change is Shayara Bano, a Muslim woman whose husband, after 13 years of marriage, divorced her by triple Talaq, a practice that allows Muslim men in India to leave their wives unilaterally and often instantaneously by saying “Talaq,” meaning divorce, three times. Other similar petitions were put together by the court and are being heard at the same time. The next hearing in the case is expected in May.
The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.
Muslim clerics and scholars have rebuffed demands for unifying personal laws into a common civil code for all Indian citizens—advocated by Prime Minister Narendra Modi’s Bharatiya Janata Party—rejecting what they call attempts to interfere with their religious practices in Hindu-majority India. There are more than 170 million Muslims in the country out of a 1.2 billion population.
Muslim women’s rights groups argue that the practice of triple talaq misinterprets the Quran and is protected by orthodox Muslim men to perpetuate patriarchy. In her petition, Ms. Bano asks the court to declare it illegal as it “practically treats women like chattel,” infringes their “basic right to live with dignity” and violates their fundamental rights to equality and life guaranteed under the constitution.
“Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power,” the petition reads, alleging that women have been divorced over Skype, Facebook and through text messages.
“There is no protection against such arbitrary divorce,” it adds.
The petition also challenges polygamy in Islam and a practice known as Nikah Halala under which a divorced woman must be married to another man and divorced from him before she can return to her first husband.
The validity of personal laws rooted in religious beliefs – and the judiciary’s right to intervene – has long been a contentious issue in India. In the landmark Shah Bano case in 1985, the Supreme Court ordered the husband of 62-year-old Shah Bano Begum to give his divorced wife continual alimony when Sharia, or Islamic religious law, allowed the discontinuation of alimony three months after their split.
Facing pressure from a section of the Muslim community that saw the judgment as an affront to its religious autonomy, the then Congress party government led by Rajiv Gandhi hurriedly passed a law that reversed the judgment by limiting a man’s financial obligations after divorce. The Supreme Court refused to strike down the new legislation, but interpreted it widely in an effort to safeguard women’s rights.