The Movement Against the Triple Talaq Divorce Practice in India

By: Hilary McDaniel

In March 2017, over one million Indian Muslims signed a petition to end the triple talaq, a controversial divorce practice.[1] The triple talaq has been banned in more than 20 Muslim countries including Pakistan and Bangladesh, but remains in India.[2] As the law currently stands, according to the Qur’an, Muslim men may divorce their wives by saying or writing “talaq, talaq, talaq.”[3] In English this just means saying “I divorce you” three times. Only men may divorce their spouse according to the triple talaq. The reality of the practice is that women can be forced out of their home on very short notice.[4] In contrast, a woman may unilaterally terminate their marriage only if their husband gave them that right in their marital contract.[5] A very small minority of Muslim women enjoy such a right.[6]

India’s Constitution specifically protects against gender inequality.[7] Article 14, provides 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."[8] Article 15 further states that "[t]he State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."[9]

Despite these constitutional protections, the discriminatory Muslim divorce practice still stands. This is in large part because of India’s rules protecting religious communities who follow their own laws.[10] Article 25 of the Constitution provides for religious freedom and Article 26 further allows “every religious denomination the right ‘to manage its own affairs in matters of religion.’”[11]

In India, family laws differ amongst major religious groups.[12]  India’s system of family law is considered legal pluralism.[13] Legal pluralism means that there are “multiple sources of law within a single geographical area.”[14]  India’s system of family law legal pluralism is a holdover from the British colonial period.[15] Independent India retained the system “as a means of cultural accommodation within its multicultural society, especially concerning the accommodation of Muslims.”[16] India’s family law governs “marriage, separation, divorce and its consequences, maintenance for children and other dependents, inheritance, adoption, and guardianship.”

The plural law system in India makes legal change difficult because conservative religious and political elites serve as representatives.[17] Such representatives are usually unwilling to initiate change.[18] Nevertheless, Indian Muslim laws are not static. “Indian Muslim law changed over the last generation to give women permanent alimony, to restrict men's right to unilaterally repudiate their wives, and to give earlier wives the right to get a divorce if their husbands practice polygamy.”[19] Additionally, in 1978, some judges ruled that according to the Qu’ran, the triple talaq may only be effected when the husband states a reasonable cause for the divorce, and the couple has attempted reconciliation.[20]

Despite these changes, the triple talaq practice still has devastating consequences. The story of Shagufta Sayyd provides a heartbreaking example of how the law operates.[21] Hours after Sayyd was married, her new husband informed her that he was in love with another woman and only married her to please his mother. The husband told her, “I don’t want to keep you,” then said “divorce, divorce, divorce,” and the marriage was over immediately.

For obvious reasons, the practice has rarely been addressed by courts in the United States. Interestingly, Michigan, of all states, has ruled on the triple talaq. The Michigan Court of Appeals refused to recognize the triple talaq divorce of an Indian couple.[22] In that case, when the husband was visiting India, he wrote “I Divorce thee Saida Tarikonda.”[23] The wife disputed the validity of the divorce. The court held that not only did the practice violate public policy, it violated due process because the wife had “no right to prior notice of defendant's pronouncement of the triple talaq,” and because “she was not represented by an attorney and had no right to be present at the pronouncement.”[24]

The practice is clearly illegal under United States standards, and beginning May 11, 2017, the Supreme Court of India will begin their final hearings on the legality of the triple talaq practice.[25] Perhaps the practice will be banned once and for all. That Supreme Court of India says it will focus on whether the triple talaq practice violates constitutional rights.[26] Sources report that the petitions filed by Muslim women who have been divorced by men through the triple talaq will be an important factor considered by the Court.[27]  As such, the million women who petitioned against the triple talaq last month could be the Court’s deciding factor.

[1] Manveena Suri, Triple Talaq: 1 million Indian Muslims Sign Petition Against Outdated Divorce Practice, CNN (last updated Mar. 17, 2017, 6:14 AM), http://www.cnn.com/2017/03/17/asia/triple-talaq-petition-1-million/.

[2] Banned in More than 20 Countries, Practice of Triple Talaq Continues to Prevail in India, Firstpost (Last updated Jul. 3, 2016, 6:36PM), http://www.firstpost.com/india/banned-in-more-than-20-countries-practice-of-triple-talaq-continues-to-prevail-in-india-2869988.html.

[3] Narendra Subramanian, Legal Change and Gender Inequality: Changes in Muslin Family Law in India, 33 L. & Soc. Inquiry 631, 641 (2008).

[4] Suri, supra note 1.

[5] Subramanian, supra note 3.

[6] Id.

[7] Shalina A. Chibber, Charting a New Path Toward Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code, 83 Ind. L.J. 695, 697 (2008).

[8] Id.

[9] Id.

[10] Banned in More than 20 Countries, Practice of Triple Talaq Continues to Prevail in India, supra note 2.

[11] Chibber, supra note 7, at 699.

[12] Subramanian, supra note 3, at 635.

[13] Id. at632.

[14] Caroline Roseveare, The Rule of Law and International Development, https://assets.publishing.service.gov.uk/media/57a08a0be5274a27b20003c7/Literature_Review_RoL_DFID-GSDCH-PEAKS_FINAL.pdf (last visited Mar. 31, 2017).

[15] Family Law and Cultural Pluralism, WorldHistory.Biz (Mar. 5, 2015, 2:43 PM), http://www.worldhistory.biz/sundries/29044-family-law-and-cultural-pluralism.html.

[16] Id.

[17] Subramanian, supra note 3, at 632.

[18] Id.

[19] Id. at 633.

[20] Id. at 651.

[21] Rishabah R. Jain & Manish Mehta, Muslim Women Campaign to End Instant Divorce in India, The Big Story (Jul. 2, 2016, 10:19 AM), http://bigstory.ap.org/article/23ac1a784981454fa428000e03244bbb/muslim-women-campaign-end-instant-divorce-india.

[22] Banu v. Saheb, No. 287403, 2009 Mich. Ct. App. LEXIS 733, at *3 (Mich. Ct. App. Apr. 7, 2009).

[23] Id. at *2.

[24] Id. at *6.

[25] Dhananjay Mahapatral, Supreme Court Sets May 11-19 to Finish Hearings on the Triple Talaq, The Times of India (Mar. 31, 2017, 3:55 AM), http://timesofindia.indiatimes.com/india/supreme-court-sets-may-11-19-to-finish-hearings-on-triple-talaq/articleshow/57928444.cms.

[26] Id.

[27] Id.