India’s triple talaq ordinance faces legal and social challenges

Muslim women in India seeking legal respite from the misuse of triple talaq, or instant divorce, may have to wait a bit longer. The government’s push to end the age-old practice through a hurriedly-passed ordinance in September this year has received significant resistance from Muslim organisations and community leaders.

At least four petitions have been filed so far before the country’s two High Courts and the Supreme Court, challenging the ordinance on various grounds, including that it violates the constitution, interferes with Shariah law and discriminates on the basis of religion.

Advocate Zulfiker Ali P.S., who has filed a petition before the Supreme Court on behalf of the Kerala-based religious organisation Samastha Kerala Jamiathul Ulema, said an ordinance should generally be issued as a last resort for issues that require immediate consideration when Parliament is not in session. 

“Triple talaq is not such a pressing issue faced by the community that warrants an urgent ordinance using the power of Article 123. It is completely unconstitutional and we have challenged this in the court,” he told Salaam Gateway over the phone from New Delhi.

Article 123 gives the President the power to promulgate ordinances at any time except when Parliament is in session, and if the President is satisfied the issue needs immediate attention. Ordinances have a maximum validity of six months, after which they have to be made into law by Parliament, or they lapse.

Zulfiker’s petition is likely to be heard in the week starting October 22, when the Supreme Court reconvenes after a break.

SUPPORT FOR THE BILL

The Supreme Court in a landmark judgement in September last year had barred the triple talaq practice – after which the government brought and passed the Muslim Women (Protection of Rights on Marriage) Bill in the Lower House of Parliament in December 2017.

But, amidst resistance from opposition parties, it hasn’t been able to gather enough support yet for the bill in the Upper House where it doesn’t have a majority.

The bill is now expected to be tabled at the winter session later this year.

The ordinance, which also has a provision for a jail term up to three years or a fine for a husband who divorces his wife instantly by uttering talaq three times at one sitting, has received strong resistance from India’s apex Muslim body which sees this as interference with Shariah laws.

Syed Mohammed Wali Rahmani, General Secretary of the All India Muslim Personal Law Board (AIMPLB), said the ordinance not only goes against Shariah but also clashes with the judgement of the Supreme Court, which has invalidated the practice.

“We think it’s a misuse of power by the government. Ordinances are not meant for such situations. We are taking legal opinions on this matter and will soon hold meetings to decide the next course of action,” Rahmani said.

After the Supreme Court judgement, Ali pointed out that no divorce can be effected by saying talaq three times in a single sitting. “Since triple talaq has no legal effect at all, how can this be a punishable offence?” he argued, saying that, at the most, it can be considered a procedural violation for effecting a divorce.

UNCERTAINTY

However, women’s rights groups fighting against this practice have welcomed the ordinance but agreed that uncertainty remains surrounding its validity or applicability.

“We have been calling for a law for a very long time now. We are happy that this law is being brought about, but again, it’s not a law in that sense, so that uncertainty is very much there,” said Zakia Soman, founder of Bharatiya Muslim Mahila Andolan, a social organisation that was one of the petitioners in the triple talaq case in the Supreme Court.  

Mumbai-based social activist and lawyer Yasmin Ali Shaikh, who has fought many cases of triple talaq, said a judgment from the Supreme Court or a proper law to that effect would have been better than an ordinance. 

“The four-page ordinance seems to be creating more ambiguity as no proper guidelines have been issued on how it would be implemented,” she said.

As a lawyer, she said, one has to always follow everything in its right procedure. “A proper law would have contained everything – what are the different forms of talaq, how it should be done, how much maintenance should be given, etc.,” said Shaikh. 

The Bombay High Court lawyer who handles hundreds of cases of divorce, domestic violence, family maintenance and child custody of Muslim women suggested there should be an amendment to the Dissolution of Muslim Marriages Act, 1939.

Soman added that Muslims don’t have any marriage law. “You have seven or eight laws for Hindu marriages. The Christian Marriage Act has been reformed and amended by Parliament. It’s only we (Muslims) who have been denied the advantages of legal protection,” she said.

PRACTICAL DIFFICULTIES

Shaikh pointed out that as a lawyer she faced many practical difficulties while dealing with Muslim divorce cases due to the lack of a proper law. “When we seek a declaration from the court where Khula (wife initiates the divorce) or divorce by mutual consent has taken place, the family court does not pass an order, except in special cases,” said Shaikh.

She insists that a proper law is required. “For instance, it may specify that a divorce through triple talaq is not allowed, but if it’s through mutual consent or Khula, it can be accepted,” she said, adding that just making a penal provision is of no use.

Bharatiya Muslim Mahila Andolan would like to see the bill lay down proper procedures for divorce, said founder Soman. In general, however, she is happy with the content of the ordinance as it covers almost all the points suggested by her organisation.

“We had asked the locus of the FIR [First Information Report] should be with the wife. Now it is with wife and family. We said the husband should be liable for fine and / or six months imprisonment. Now it is three years. So we are happy with the ordinance,” she said.

But advocate Zulfiker Ali said the ordinance creates discrimination on the basis of religion. “Desertion of wives by husbands is happening in other communities also, but there it’s considered a civil dispute. When it comes to the Muslims, it’s been made a punishable offence,” he said.

Soman argued that it has also been made a compoundable offence, which gives the best chance for couples to resolve their differences if there is a possibility of reconciling.

“Our idea is not to punish the men but to get justice for the women. So even if a divorce happens, it should happen in a fair manner – fair to the women as well as to the men. The unilateralism has to go – which this law does. It gives importance to the opinion and the wish of the wife,” she added.

WITHIN THE FRAMEWORK OF ISLAM

Mumbai-based Uzma Naheed, a social activist who has spent years as a member of the AIMPLB and was among the lone voices within the male-dominated cleric body to talk about containing triple talaq, said they wanted the practice to stop. “But we never had the intention to not include ulema (religious scholars) or check this from the Shariah point of view. The idea was to have this within the framework of Islam,” she said.

Naheed, whose forefathers founded the AIMPLB and the seminary Darul Uloom Deoband, said they were looking for a constructive solution, but with this ordinance, “the women’s problems are not going to be solved, and men are also stuck now”.

Andolan’s Soman agreed that a divorce should take place based on the Quranic method, which lasts a minimum of 90 days. “And there should be efforts to reconcile and resolve differences. The ordinance does not specify this, but by making it compoundable and leaving that room for withdrawal of the complaint, I think this is as good as it gets,” she said.

Naheed sees this ordinance as an attempt by the government to interfere with the Shariah laws but said: “Our community leaders themselves are to be blamed for this. I feel let down by our community leaders who didn’t offer any constructive solution within Shariah when the government and the court were asking for one.”

As part of solutions, Naheed had spearheaded the drafting of a model Nikahnama, or conditional marriage contract, two decades ago that included some strict provisions within Shariah to deter husbands from giving triple talaq to their wives.

The draft Nikahnama had 36 points including that the husband will never utter triple talaq in one sitting nor would he give talaq in isolation. “Even if he has to give divorce, he will use ‘Ahsan’ form of talaq. It also stated that the Mehr amount could be in six forms, including cash, gold and silver, property and shares, etc.,” she said.

Whereas, as deterrent measures, the draft mentioned that in the event of a husband giving triple talaq to his wife, he will be liable to pay double / triple or manifold of the agreed mahr (dowry) amount to his wife immediately, and / or has to leave his own matrimonial house.

“The wife will have a right on husband’s properties and assets to the extent of her dues under the marriage contract and shall have right to possess / occupy the same till all her dues including Mehr are paid in full,” Naheed said.

Naheed, who also runs the Iqra Education Foundation in Mumbai and is Vice President of the All India Muslim Majlise Mushawarat, said the draft Nikahnama was circulated and vetted by more than 300 clerics and lawyers, before being shared with the AIMPLB in 1996.

JUST A LAW IS NOT ENOUGH

AIMPLB’s Rahmani said triple talaq is a social evil which can be eradicated only through educating people and creating awareness about it. “Just by making a law, you can’t stop this evil,” he said.

While the number of triple talaq cases has dipped ever since the Supreme Court invalidated it, advocate Shaikh said the practice hasn’t stopped completely.

“Since they can’t give triple talaq, they are resorting to giving ‘one talaq’ (talaq-ul-raje) which would be operational as three talaqs after three months, if they don’t resume co-habitation in the meantime,” she said.

Shaikh is uncertain how much difference the ordinance would make on the ground. “I fear the cases of second marriages and all those extra-marital affairs will increase among Muslims. While they won’t be able to give triple talaq, nothing prevents them from performing the second marriage,” she said. 

Soman said the next target would be the winter session of Parliament. “We will try to create a campaign once again and write to all the political parties as we did earlier. We may also do a signature campaign or something alike,” she said.

“But not even for a moment,” Soman added, “do we believe that our fight is over, given the nature of politics and the extent of patriarchal dominance in Indian society.”

(Reporting by Syed Ameen Kader; Editing by Emmy Abdul Alim [email protected])

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