New Delhi: India’s Supreme Court on Tuesday banned “triple talaq”, or instant divorce, practised by some in the Muslim community, saying it is “unconstitutional”.
Triple talaq is the practice under which a Muslim man can divorce his wife by simply uttering “talaq” three times. It is prevalent among India’s Muslim community majority of whom follow the Hanafi Islamic school of law.
This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months.
The government has cited the example of many predominantly Muslim countries, including Pakistan, that have banned triple talaq.
Why is it in the news?
The issue has attracted media attention in the past two years since a Muslim organisation, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban triple talaq and “nikah halala” – a practice where divorced women, in case they want to go back to their first husbands, have to consummate a second marriage.
“In the course of our work, we have regularly been approached by our sisters, complaining about mistreatment and misuse of the oral talaq system. In most cases, men go scot-free and believe their action is approved by the Quran,” Zakia Soman, one of the cofounders of the BMMA.
India’s Prime Minister Narendra Modi has spoken on the issue a number of times, calling for “justice for Muslim women”.
It has generated debate around the rights of Muslim women as the issue of divorce, marriage, and inheritance come under the purview of the Muslim Personal Laws. India has a provision for personal laws for all religious communities.
But the All India Muslim Personal Law Board (AIMPLB), a non-governmental organisation that aims to educate Muslims on the protection and application of Islamic laws, has opposed the move to ban triple talaq and polygamy. The latter is illegal in India.
Critics say divorce and polygamy are not the main issues 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.
Can triple divorce be banned?
A five-judge bench will examine whether the Islamic divorce practice “is fundamental to religion” and whether it is a fundamental right. Article 25 of India’s constitution grants the right of religion as a fundamental right.
Triple talaq has already been ruled unconstitutional by the Supreme Court in a number of cases, including in February 2015.
“I think that would be a very poor understanding of the law because banning is a legislative action,” Mustafa said.
He suggested instead polygamy should be made a crime for Muslims as well.
“But the bigamy law for Hindus has not really helped Hindus in becoming less bigamous. So one must understand that normative changes in law do not really bring about any major social reforms. You have to create those conditions; the attitudinal changes have to come,” said Mustafa.