MUSLIM WOMEN IN INDIA CHALLENGE ‘INSTANT DIVORCE’ LAW
Geeta Anand
MUMBAI — When Neeha Khan’s husband entered her parents’ house in eastern Mumbai last February, he carried a letter that contained a word, repeated three times, that can instantly change the course of a Muslim woman’s life in India.
Talaq, talaq, talaq.
He flung the letter to the floor and just like that, Ms. Khan’s seven-year marriage was over.
In person, over the phone, in a letter or even on WhatsApp, Muslim men who repeat talaq — the Arabic word for divorce — three times can instantly end their marriages, according to some interpretations of Islamic law. The word is used by Indian Muslims even if they do not speak Arabic.
With such divorces, which are available only to men, husbands can oust their wives from their homes, usually without any alimony or other financial support, leaving the women with few resources or prospects. Half of Muslim women in India are illiterate, and only 14 percent have ever worked outside the home, according to a 2014 study by the Bharatiya Muslim Mahila Andolan, a Muslim women’s advocacy group.
But now the Supreme Court of India is poised to rule on complaints filed by five Muslim women who argue that being divorced in this way violates their fundamental right to equality under the Indian Constitution. Three Muslim women’s organizations have filed petitions in support of the divorced women.
The Constitution grants citizens the right to “equality before the law” and prohibits “discrimination on grounds of religion, race, caste and sex.” But it also gives Indians “the right to freely profess, practice and propagate religion” and allows every religious denomination the right “to manage its own affairs in matters of religion.”
In practice, although the 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.
The case pits religious freedom against individual rights guaranteed by the Constitution. The issues involved are similar to cases in the United States about businesses refusing to serve same-sex couples and requirements for employers to provide free insurance coverage of contraception for women.
A ruling is expected in the next few weeks.
Last Monday, in an affidavit filed in court that seemed intended to stave off an unfavorable ruling, the All India Muslim Personal Law Board, the conservative nonprofit group fighting to uphold what is known as “triple talaq,” promised to discourage the practice. Whether this will affect the Supreme Court’s decision remains to be seen.
There are no official statistics to suggest how widespread the practice of instant divorce is, but the Bharatiya Muslim Mahila Andolan study found that among a sample of more than 4,700 women, 525 were divorced and 404 of those were “triple talaq” divorces. A Muslim woman in India who seeks a divorce must generally gain the permission of her husband, a cleric or other Islamic authorities.
The Quran makes no mention of instant divorce using 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 still influential in shaping Islamic doctrine.
Today, instant divorce is not uniformly practiced or accepted in the Muslim world. In many Muslim-majority countries, religious leaders frown on the practice and note that the Quran recommends that couples make a genuine effort to reconcile and resolve their differences before parting ways, said Julie Macfarlane, a law professor at the University of Windsor who wrote a book on Islamic divorce law.
Ms. Khan, 28, whose husband divorced her with his letter to her, has been visiting one Muslim cleric after another, searching for one who will say she and her husband should try to reconcile.
“I am a devout Muslim,” she said, “but I think the Muslim law board is crazy.”
“There’s no way I can ever believe I am divorced by such a letter,” she said as she thumbed limply through photographs of her wedding day. “It cannot be Allah’s will to break up families in this way.”
An instant divorce method available only to men would seem to be obviously discriminatory and an easy ruling for the Supreme Court of India. But it is not so simple.
The All India Muslim Personal Law Board, which presents itself as the protector of Muslim rights, has argued that instant divorce is part of the practice of Islam and thus protected by the Constitution.
“Triple talaq is going on since 1,400 years, how can you say it is unconstitutional?” said Kapil Sibal, the lawyer representing the Muslim law board, who is a Harvard Law School graduate and a former minister of law and justice.
If men are unable to instantly divorce their wives, they “may resort to illegal, criminal ways of murdering or burning her alive,” the Muslim law board said in an affidavit to the court.
But beyond such claims, Indian Muslims are worried about preserving their right to practice their religion without interference from the application of secular laws.
Modern Indian history is replete with clashes between Hindus and Muslims. More than one million people were killed in the violence that erupted in the 1940s, when the subcontinent gained independence from Britain and was partitioned into India and Pakistan.
Pakistan defined itself as an Islamic country, but India’s founding fathers laid the groundwork for a pluralistic country where practitioners of all religions would be treated as equals. Muslims are India’s largest religious minority, making up 14 percent of the population.
Many Muslims feel particularly vulnerable today under the government of Prime Minister Narendra Modi of the Bharatiya Janata Party, which has Hindu nationalist roots. Several states have banned the sale of beef because cows are revered in Hinduism, even though beef is a staple of the Muslim diet. A government crackdown on slaughterhouses in the most populous state threatens many Muslims who are employed in the meat industry.
The Indian National Congress, which casts itself as secular and the guardian of minority rights, 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, which counts Muslims as a core constituency, moved to nullify the court’s ruling 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, said Noorjehan Safia Niaz, co-founder of the Bharatiya Muslim Mahila Andolan, one of the Muslim women’s advocacy groups that have 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.
The Congress party and Indian authorities have erred in considering the Muslim law board to be “the overarching leaders of the whole Muslim community,” she said in an interview.
By listening only to male Muslim leaders, and particularly conservative clergy members, “Muslim women become voiceless and faceless persons,” she said.
Muslim women do not support the practice of instant divorce, she said. Of the more than 4,700 Muslim women from 10 states surveyed in the 2014 study, more than 90 percent opposed instant divorce. Few received any substantial payments from a husband for use in the event of his death or divorce. Most had never heard of the Muslim law board that claims to speak for India’s Muslims.
Among the Muslim women whose petitions are before the Supreme Court is Shayara Banu, 35, whose husband divorced her in 2015 by writing the word talaq three times in a letter.
Her husband, a property dealer in the northern Indian city of Allahabad, took their three children and pays no money to support her, she said in an interview. They had been married for 13 years.
Another plaintiff, Ishrat Jahan, 31, is challenging her divorce, which her husband of 15 years carried out in a phone call from Dubai, where he had gone to work.
An embroidery worker, he took their four children, married again and provides her with no financial support, Ms. Jahan told the court.
Mr. Modi’s government, which does not rely on the Muslim vote, has backed the ban on instant divorces. The practice not only discriminates against Muslim women, but also is “not integral” to the practice of Islam, Attorney General Mukul Rohatgi told the court.
Some critics view the Modi government’s position with suspicion, fearing that the intent is less to support Muslim women than to please Hindu nationalists, who have long argued that the same laws on marriage and divorce should apply to all religious groups.
But others say the time has come for the government and the courts to stand up for the rights of Muslim women.
“Religious practices cannot trump modern constitutional morality,” Pratap Bhanu Mehta, president of the Center for Policy Research, a New Delhi think tank, wrote in the May 18 issue of The Indian Express.
Indira Jaising, a lawyer representing a Muslim women’s group called the Bebaak Collective, argued in court that in a constitutional democracy, “no law, which is imposed on individuals and which is enforced by the State, can be immune from the test of fundamental rights.”
“There can be no more injustice than to be constantly at the fear of being unilaterally divorced, with no judicial recourse available,” she said in a brief to the court.
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