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India's supreme court bans Islamic instant divorce India court bans Islamic instant divorce in huge win for women's rights
(about 4 hours later)
India’s top court has banned a controversial Islamic practice that allows men to divorce their wives instantly, saying it was unconstitutional. An Islamic practice permitting men to instantly divorce their wives has been declared unconstitutional by India’s supreme court after decades of campaigning by women’s groups and victims.
Victims of the practice known as “triple talaq”, whereby Muslim men can divorce their wives by reciting the word talaq (divorce) three times, had approached the supreme court to ask for a ban. The “triple talaq” has allowed Muslim men to dissolve marriages by pronouncing the word “divorce” three times.
Triple talaq “is not integral to religious practice and violates constitutional morality”, a panel of judges said. The supreme court in Delhi took up the issue last year in response to a petition from seven victims and women’s groups. A majority of the bench declared on Wednesday that triple talaq was “not integral to religious practice and violates constitutional morality”.
“It’s a very happy day for us. It’s a historic day,” said Zakia Soman, the co-founder of the Indian Muslim Women’s Movement, which was part of the legal battle to end the practice. Campaigners hailed the supreme court’s 3-2 decision as a huge victory for India’s 90 million Muslim women.
“We, the Muslim women, are entitled to justice from the courts as well as the legislature,” she added. “It’s a very happy day for us. It’s a historic day,” said Zakia Soman, the co-founder of the Bharatiya Muslim Mahila Andolan (BMMA), an activist group that was party to the legal battle.
The five supreme court judges were from India’s major faiths – Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. In their ruling, they said it was “manifestly arbitrary” to allow a man to “break down [a] marriage whimsically and capriciously”. “We, the Muslim women, are entitled to justice from the courts as well as the legislature.”
“What is sinful under religion cannot be valid under law,” they said. The Indian prime minister, Narendra Modi, also welcomed the verdict:
The practice had been challenged in lower courts but it was the first time India’s supreme court had considered whether triple talaq was legal. Judgment of the Hon'ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment.
India allows religious institutions to govern matters of marriage, divorce and property inheritance in the multi-faith nation, enshrining triple talaq as a legal avenue for its 180 million Muslims to end unions. A national survey conducted in 2015 by the BMMA found roughly 1 in 11 Muslim women were survivors of triple talaq, the vast majority receiving no alimony or compensation.
More than 20 Muslim countries, including neighbouring Pakistan and Bangladesh, have banned the practice while in India, the practice has continued. While most Hindu personal law has been overhauled and codified over the years, Muslim laws have been left to religious authorities and left largely untouched. Clerics had also started recognising instant divorces where the word “talaq” had been texted or emailed.
The Hindu nationalist government of the prime minister, Narendra Modi, had backed the petitioners in this landmark case, declaring triple talaq unconstitutional and discriminatory against women. Modi’s Bharatiya Janata party has long pushed for a uniform civil code, governing Indians of all religions, to be enforced. Arshiya Ismail did not even hear her husband utter the words. She told the Guardian last year: “One day, suddenly, he told me he had given me talaq. He said: ‘I gave it to you four days earlier.’”
The issue remains highly sensitive in India, where religious tensions often lead to violence. She has spent the past six years trying to have the Islamic divorce overturned so that she can leave her husband under India’s more progressive secular laws, which entitle her to one-third of his salary to support herself and their child.
The All India Muslim Personal Law Board (AIMPLB), a grouping of Islamic organisations, had told the court that while they considered the practice of triple talaq wrong, they opposed any court intervention and asked that the matter be left to the community to tackle. “It’s wonderful news, I’m so emotional about it,” Ismail said on Tuesday. “Basically my marriage still stands as per the supreme court. I was hoping for it but I still had my doubts.”
Progressive Muslim activists had criticised the board’s position. “This is the demand of ordinary Muslim women for over 70 years and it’s time for this country to hear their voices,” activist Feroze Mithiborwala told New Delhi television station. Triple talaq has been criticised even among hardline Muslim schools and was already banned in Pakistan, Bangladesh and across much of the Islamic world.
Some Islamic scholars say there is no mention of triple talaq in the Qur’an, which instead details a different process for divorce based on mediation. It persisted in India because the country’s Muslim, Hindu and Christian communities are permitted to follow religious law in personal matters such as marriage, divorce, inheritance and adoption.
Progressive Muslim women’s groups say Islamic religious authorities – uniformly male – have been resistant to give up men’s power to instantly leave their wives.
India’s Muslim community is also generally poorer and less educated than others, which activists say has made it harder for women to mount legal and social campaigns against the practice.
Islamic leaders have also warned that meddling with Muslim personal laws may see them one day dismantled altogether, in favour of a uniform civil code they fear would be Hindu-inflected and ride roughshod over their beliefs.
Modi’s Hindu nationalist government, whose party has long pushed for a uniform civil code, had backed the petitioners in the case.
Each of the five supreme court judges belonged to one of India’s main faiths – Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. The majority opinion said it was “manifestly arbitrary” to allow a husband to “break down [a] marriage whimsically and capriciously”.
The All India Muslim Personal Law Board, a peak body of Islamic organisations, had said it considered triple talaq but argued against the supreme court interfering in religious law.
Nonetheless, Kamal Faruqui, a member of the board, said he regarded the decision as a victory.
“It upholds the rights of Muslims and other minorities to follow their own personal laws,” he said.
“There were some voices in the country that wanted to bring in a uniform civil code for all religious faiths, but the supreme court judges said a few weeks ago that they would look only at triple talaq, not at other customs. So Muslim personal law has been protected by the ruling.”
Noor Jehan, another member of the BMMA, said she had celebrated the verdict in her office with sweets and soft drinks, but would begin lobbying for a more progressive Islamic divorce law.
“It is a historic victory for Muslim women, something we have been working for for 10 years,” she said. “It is going to give immense relief to women but we need to pass a law soon. Our organisation has already prepared a draft law which we will send to the government.”
Additional reporting by Amrit Dhillon