In India efforts to pass a law to make the practice of instant divorce in the Muslim community a criminal offence have become embroiled in controversy amid strident objections from opposition parties who say it could be misused to harass men. But women activists hope political parties will resolve their differences and usher in what would potentially be the first significant reform in Muslim family law.
“That we want the law is for sure. This moment has come 70 years too late after independence,” says Zakia Soman, of the Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement), which was one of the frontline campaigners in a legal battle that resulted in the Supreme Court striking down the centuries-old practice as unconstitutional five months ago.
India is the latest among a number of countries that have outlawed the Islamic practice of allowing Muslim men to divorce their wives by uttering the word “talaq” thrice.
But saying that the practice continues despite the top court’s order, the government has introduced a Bill to make “triple talaq” a non-bailable offence with up to a three-year jail term. The Bill passed easily last month through the lower house of parliament where the government has a majority.
However it was blocked last week in the upper house of parliament by opposition parties who say that proposing jail time for men who resort to the age old practice to end their marriage overreaches by putting what is essentially a civil contract in the ambit of criminal law. They say that a clause that an offender should continue to support his wife is meaningless since he cannot do so from jail.
Proponents of the bill defend the tough provisions saying that a strong deterrent is needed to stop Muslim men from resorting to instant divorce.
A former minister, Arif Mohammad Khan, who is a vocal supporter of reform of Muslim personal law, is one of the architects of the Bill.
“After 2017 judgment more than 100 women have already been turned out of their homes. Are we going to remain spectator while this enormity is happening?” he asks. “This is not merely question of reform of Muslim personal law. It is question not even of women’s rights, it is question of human rights.”
Women activists pressing for a divorce law for the Muslim community also want a man to face penal action for trying to end his marriage by using “triple talaq” but say the bill should be amended so that a man can get bail. “If you make it cognizable there are apprehensions that there can be misuse,” says Soman. They also want the law to lay down the procedure for divorce among India’s 90 million Muslim women.
With the government lacking a majority in the upper house of parliament, it is not clear if it will reach a consensus with opposition parties on the Bill.
There is also strong opposition to the bill from conservative voices in the Muslim community who accuse the right wing Hindu government of interfering in its personal law. “This action is absolutely unwanted and it is nothing but a political item (ploy). It will be challenged also obviously but it will not send good signal,” says Kamal Farooqui, a founder member of the All India Muslim Personal Law Board that wanted to retain “triple talaq.”
But Muslim women activists remain optimistic that parliament will pass a law to govern divorce sooner rather than later. The reason: despite opposing the bill’s current draft, the main opposition Congress Party has stressed that it supports the need for a law to protect Muslim women.
“All our political class has recognized that the Muslim women have been denied the protection of a law. So in itself it is a very big thing for us,” says Soman with a relieved laugh.
However there is uncertainty about the stand the Congress Party, for whom Muslims are a core constituency, will finally take. Analysts point out that 30 years ago, the party was widely slammed for failing women when it passed a law to shift responsibility away from a Muslim man to support his divorced wife after a Supreme Court order to give maintenance to a Muslim woman.
India does not have a common family law for all citizens and allows religious considerations to govern civil issues such as marriage, divorce and property rights. But while Hindus and Christians have laws in matters of marriage and divorce, the Muslim community has no legal cover and women complain of being victims of patriarchal personal laws.
Activists say tens of thousands of Muslim women have been abandoned and forced out of homes with little notice or financial support when men uttered “triple talaq” and some had even delivered the three words by phone, email or text.