A Human Rights Achievement for Muslim Women in India

By: Lauren Kissel

As of August 22, 2017, India’s highest court officially ended the long-standing practice of allowing Muslim men to divorce their wives by uttering the word “talaq,” the Arabic word for divorce, three times.[1] This practice was previously allowed under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which provides “in all questions . . . regarding . . . dissolution of marriage . . . the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”[2] India has long since allowed the tenants of religious law to govern certain matters.[3] Many citizens of India like this practice and oppose the imposition of a Uniform Civil Code.[4] However, like in the case of the triple talaq, imposition of religious law can have many negative consequences.[5] For example, the triple talaq was only available to Muslim men.[6] In contrast, a Muslim woman who wanted to divorce her husband had to get permission from her husband, a cleric, or another Islamic authority.[7] This resulted in many Muslim women’s lives being suddenly uprooted and disadvantaged by not being entitled to alimony or financial support.[8]

In deciding to outlaw this instant divorce by triple talaq, the Supreme Court of India focused on several cultural factors. The recent trend amongst Muslim countries has been to stray away from the archaic practice of triple talaq divorce.[9] Prior to India banning this practice, it had been one of the few countries still holding onto it.[10] Many other Muslim majority countries had long since outlawed the triple talaq.[11] The Supreme Court focused on this outlawing of the triple talaq practice in many other states in making its decision.[12] The Court examined texts from several renowned scholars and noted that the practice had already been outlawed in many Arab states, Southeast Asian states, and Sub-continental States.[13] Additionally, the Court noted that the triple talaq ban had much support, particularly from Muslim women.[14] In March of 2017, a million women signed a petition to ban the triple talaq.[15] These cultural factors seemed to hold a lot of weight with the Court and helped the justices to see how society is changing and that Indian law should follow.

In addition to looking at recent trends, the Supreme Court of India also focused on the constitutionality of the triple talaq law. Of the three justices who voted to invalidate the law, two of them found the practice of triple talaq unconstitutional.[16] Like the United States Constitution, India’s Constitution also protects a fundamental right to equality. Article 14 of India’s Constitution states that "[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."[17] Article 15 further provides "[t]he State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."[18] Therefore, India’s Constitution expressly protects a right to gender equality. Since the practice of triple talaq was only available to men, the Supreme Court of India ruled that this practice discriminated against women and was therefore unconstitutional.[19]

Interestingly, the Court also focused on the fact that this practice went against “constitutional morality” because it put Muslim women at a disadvantage over women of other faiths since the same practice was not followed by other religions of India.[20] This is an interesting twist to the case and provides further justification that the practice of triple talaq is not only unconstitutional on the basis of gender discrimination, but also religious discrimination as well.[21] This is helpful because it lends further support to the notion that this type of law is unconstitutional. Many Muslim women struggle to uphold their rights in India as Islamic religious authorities are uniformly male.[22] These religious authorities are reluctant to give up power to women.[23] Additionally, the Muslim community is generally less educated and more poor, which make it difficult to start and gain support for legal and social issues related to the Muslim faith.[24] Therefore, these factors combined make it significant that the India Supreme Court not only declared triple talaq unconstitutional on the basis of gender, but also on the basis of religion, as this makes it harder for Muslim men to fight back against the new ban on instant divorce.

Finally, the third justice who voted to invalidate the law did so because triple talaq is not a practice that is fundamental to the Muslim faith, and therefore it failed a key legal test to upholding religious laws.[25] In fact, the justice ruled that triple talaq goes against the basic tenants of the Quran, which attributes “sanctity and permanence to matrimony.”[26] However, the practice of instant divorce runs contrary to this religious tenet.[27] Since he believed this practice to be anti-Quranic, it follows that it does not make sense to uphold it under Shariat law.[28] The justice stated, “[w]hat is banned in theology cannot be good in law.”[29] Therefore, this justice said that in addition to the questions of constitutionality, it also does not make sense to uphold the practice of triple talaq on the basis of religious reasons.

Overall, this case banning the practice of instant divorce in India is monumental to Muslim women and the fight towards equality under the law.[30] Muslim women have been fighting to end this practice for many years, and its ban brings Indian law a step closer towards equality and justice for all, regardless of gender or religion.[31]

[1] Scott Neuman & Camilla Domonske, India’s High Court Outlaws Practice of Instant Divorce by Muslim Men, NPR (Aug. 22, 2017, 2:47 PM), http://www.npr.org/sections/thetwo-way/2017/08/22/545257237/india-s-high-court-overturns-law-allowing-instant-divorce-by-muslim-men.

[2] Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937 (India).

[3] Id.

[4] Huizhong Wu, Triple Talaq: India’s Top Court Bans Islamic Practice of Instant Divorce, CNN (Aug 22, 2017 11:30 PM), http://www.cnn.com/2017/05/18/asia/triple-talaq-supreme-court/index.html.

[5] See id.

[6] Jeffrey Gettleman & Suhasini Raj, India’s Supreme Court Strikes Down ‘Instant Divorce’ for Muslims, NY Times (Aug. 22, 2017), https://www.nytimes.com/2017/08/22/world/asia/india-muslim-divorce-triple-talaq.html?mcubz=1.

[7] Id.

[8] Id.

[9] Neuman & Domonske, supra note 1.

[10] Id.

[11] Id.

[12] Triple Talaq Verdict: Pakistan, Egypt are Among 19 Countries that have Abolished Muslim Divorce Law, Firstpost (Aug. 22, 2017, 8:41 PM), http://www.firstpost.com/india/triple-talaq-verdict-pakistan-egypt-are-among-19-countries-that-have-abolished-muslim-divorce-law-3962093.html.

[13] Id.

[14] Wu, supra note 4.

[15] Id.

[16] Gettleman & Raj, supra note 6.

[17] India Const. art. 14.

[18] India Const. art. 15.

[19] Gettleman & Raj, supra note 6.

[20]  Supreme Court of India, Judgment WP(C) No. 118 of 2016 Triple Talaq, at ¶ 166.

[21] Id.

[22] Michael Safi, India Court Bans Islamic Instant Divorce in Huge Win for Women’s Rights, The Guardian (Aug. 22, 2017, 7:03 AM), https://www.theguardian.com/world/2017/aug/22/india-supreme-court-bans-islamic-instant-divorce-triple-talaq.

[23] Id.

[24] Id.

[25] Neuman & Domonske, supra note 1.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Safi, supra note 22.

[31] See id.