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Beyond Triple Talaaq
Muslim Family Law leaves interpretation up to local clerics, and it is only in the instance that the case goes to court that legal processes are considered. Indian courts have repeatedly knocked down the right to instantaneous triple talaaq, but this has no bearing on practices across the country because the legal process has yet to be codified.
Beyond Triple Talaaq: What matters to Muslim women
*For the purpose of this article, the term “talaaq” is used in place of the word divorce.
Marriage can, perhaps, be the most beautiful relationship of all, if it is based on love and mutual respect. For some, it can be their most significant inspiration in making life worth living.
Yet, as we all know, sometimes a marriage does not work out the way it should. In some marriages, there is no mutual love, no mutual respect. Sometimes, there isn’t even mutual adjustment and compromise. Such a marriage becomes an oppression, a curse. To keep such unwilling partners bound together would be cruel to them and would also be a detriment to their community. For such cases, Islam provides talaaq (divorce).
Unfortunately, without codified law defining the process for talaaq, instantaneous triple talaaq has become common in India. It has also become the topic of a national debate, stirring up heated discord among citizens, clerics, lawmakers and more.
For us, an NGO whose mission is to support women and their right to peace, safety, and justice, the debate is informed by the real lives and stories of Muslim women. The impact that this debate has on Indian law has enormous implications for the lives of our clients, and therefore our work.
For women like Rehana, an Operation PeaceMaker client who was married to a man 12 years older than her who eventually abandoned her without any child support, it is the mystery surrounding divorce that is more demeaning than the actual act. For 7 years, Rehana lived with her parents, wondering if her husband would ever come back home, or help her support their daughter. Only with the support of an Operation PeaceMaker Counselor did Rehana discover that her husband had issued Talaaq through the local Kazi 6 months prior. She could have gone years without knowing that her husband divorced her and this was permissible in accordance with their local Kazi, who is responsible for administrating marriage and divorce procedures.
What is Triple Talaaq?
Triple Talaaq, as discussed in this article, is the act of stating the word “talaaq” three times to initiate the end of a marriage with immediate effect. The word is stated verbally, in writing, and even digitally. It is entirely different than Talaaq-e-Hassan, which is the method of talaaq permitted in the Quran, which involves making the statement of talaaq three times over at least three months.
Is it legal?
The legality of triple talaaq is what had been hotly debated in Indian courts in 2017 to now. Finally, in August 2017 the Indian Supreme Court blocked triple talaaq, affirming that the practice was a violation of women’s rights. However, it stopped short of permanently banning the practice. As I write this article, the issue is being presented to Parliament to be permanently banned, and to add to criminalize it.
Is it Islamic?
Whether or not triple talaaq is Islamic is the real point of the debate! Indian law allows Muslims, Christians, and Parsis to operate through their own family laws. Muslim family law is not codified, which means it is largely left up to the interpretation of local clerics. However, Triple talaaq as it is practiced now is not Quranic, meaning there are no verses in the Quran that support the practice. Instant talaaq is not even mentioned in the Quran. Where it exists in modern society is a complete departure from Quranic teachings. There are only two options for talaaq in the Quran, each of them requiring the husband to wait at least three months before the talaaq is finalized. Triple talaaq is actually the process of declaring the intention for divorce three times over a period of three months. Quranic talaaq also requires that the relatives of both the husband and wife try to help the couple resolve their issues before the husband initiates a talaaq. If reconciliation fails, the husband declares talaaq, and the waiting period completes, the talaaq becomes complete and the husband has to pay his ex-wife a sum of money. Ideally, he should also provide his ex-wife with an additional amount to help her maintenance to end their marriage with respect and dignity. Nothing about this process is instantaneous, informal or undignified.
Why is it such a big debate?
The debate on triple talaaq in India is highly nuanced. First, you have those who believe that there should be no law dictating religious practices for Muslims. Second, you have those who mistakenly believe that banning triple talaaq is an effort to protect women from divorce in general. Both these groups fail to understand the intention of the law. The law intends to preserve the right to divorce, clarify its lawful process, and ultimately protect women from discriminatory practices that are unconstitutional and unIslamic.
The constitutional bench of the Indian Supreme Court has already declared triple talaaq unconstitutional. Now, the debate is whether or not to criminalize the act of triple talaaq with the punishment of 3 years of imprisonment.
I believe that while banning triple talaaq was a win for women’s rights and ultimately for Muslim families, that criminalizing the act would be highly problematic. If we are guided by the real stories and experiences of Muslim women in India, we can immediately see the issues that arise with criminalization.
Criminalization is a hasty measure that aims to punish the offending man, but does not actually protect the affected woman. It can lead to several negative outcomes for the woman, including increasingly severe abuse or desertion. For example, under the terms of criminalization, if a man attempts triple talaaq, it will lead to immediate imprisonment and a sentence of 3 years. While he is in jail, he is not obligated to pay maintenance to his family. So the wife and family are left without support. When the husband is released from his sentence, what’s stopping him from punishing his wife through abuse or marrying another woman?
Alternatively, triple talaaq can be a way out for men avoiding their responsibility to pay maintenance. Some men may find it easier to utter triple talaaq and serve jail time than to take responsibility for their families. This may sound bizarre, but we have experienced many cases where men show a shocking level of commitment to do anything to avoid accepting responsibility for their families. For men like Rehana’s husband, talaaq was an impersonal process that could be conveniently arranged through a religious official who took his side.
Criminalization is a hasty measure that aims to punish the offending man but does not actually protect the affected woman.
How can the law protect Muslim women?
There are too many women like Rehana, who suffer unnecessarily demeaning and confusing processes simply because it is left to a local cleric to decide what is appropriate or fair.
The way to address the problem with triple talaaq is to define the proper legal process for talaaq in general. Currently, there is no codified law outlining the due process of talaaq among Muslims. Muslim Family Law leaves interpretation up to local clerics, and it is only in the instance that the case goes to court that legal processes are considered. Indian courts have repeatedly knocked down the right to instantaneous triple talaaq, but this has no bearing on practices across the country because the legal process has yet to be codified.
The result of the August 2017 Supreme Court ruling blocking instantaneous triple talaaq without any codified legal process, that we are seeing more cases like Fadilah’s. Fadilah was abandoned after one month of marriage when her husband moved to Dubai without informing her. She was pregnant when he left and waited a year and a half without any hope that he would return. Her husband eventually sent his divorce notices in intervals through a lawyer to Fadilah. Since his delivery of talaaq was not instantaneous and delivered through a lawyer, it did not violate the Supreme Court ruling. There is no law prohibiting this type of divorce, or making it mandatory that the woman agrees to the divorce or be able to ask for arbitration.
Indian law should categorize instantaneous triple talaaq as domestic abuse, and allow the same options for recourse that are provided to women the Protection from Domestic Violence Act, 2005 or Indian Penal Code (IPC) Section 498A, which are civil and criminal options respectively. These laws protect women from emotional abuse and provide a mechanism to ensure that proper maintenance, residence, protection from violence, and custody of her children.
Further to these legal measures to punish offenders, the government should work to sensitize Kazi’s (local religious magistrate) who facilitate nikah (marriage) and talaaq processes. If these Kazis are found guilty of assisting instantaneous triple talaaq, their license should be revoked.
In order to provide meaningful protection to Muslim women from experiencing abuse through the practice of instantaneous triple talaaq, the government must make two steps. First, codify the legal process for talaaq, thereby eliminating the possibility of discriminatory and unIslamic interpretations of Muslim Family Law by local clerics and abuses of interpretations by malevolent husbands. Second, provide legal recourse for women whose husbands try to use triple talaaq, recognizing it as domestic abuse rather than categorizing it as a criminal offense. Criminalizing triple talaaq is likely to further silence women, and hinder them reporting the issue out of worry that it will ruin any and all chance of reconciliation. Providing recourse through existing laws for domestic violence would help guarantee that the woman receives the protection and support she needs.
Beyond these two basic requirements for Indian law to support Muslim women, the government must recognize its responsibility to provide services to disenfranchised women and children. A woman facing a legal battle with her husband is often left without home or money to keep her life afloat. Victim services like safe homes, vocational training, employment, etc. are critical to ensuring that it is possible for women to secure their and their children’s future through divorce or desertion.
For women like Rehana and Fadilah, a codified process for divorce will provide them with a dignified and fair divorce process, and could also help protect them from ill-intentioned marriages with abusive husbands in the first place.
The way to address the problem with triple talaaq is to define the proper legal process for talaaq in general.
Want to help affect change? Operation PeaceMaker will be initiating a change.org petition asking for the Government of India and the All India Muslim Personal Law Board to codify the legal process for talaaq and provide Muslim women and families adequate protection under the law.
Usha Kiran Tolety
Dr. Farzana lives by the motto, “I Prefer Dangerous Freedom over Peaceful Slavery”, which has given her a reputation for being versatile and energetic. Farzana has doctorate in political science with gold medal and PG diploma in human rights and an amazing background of 7 years of working with Human rights organizations in one of the most diverse parts of country, Uttar Pradesh. Her field of expertise encompasses constitutional and legal frameworks as well as the international human rights mechanism. Her professional and academic interests include gender, patriarchy, identity based violence, and laws related to women and children.
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