Why India is trying to criminalize instant divorce for Muslim men

Shehnaz Afzal, head of the women’s wing of the Muslim Rashtriya Manch, speaks in her office in Paharganj, Delhi. In the background, a student’s illustration shows the Hindu god Ram (left), a mosque with the symbol for Islam (right) and a man donning a saffron turban (center), now generally a symbol of Hindu nationalism. Photo by Meagan Clark.

DELHI, India — Akrama was 27 with two young daughters in Delhi when her husband called her from another city with a new, younger wife. Saying “talaq” (the Arabic word for “divorce”) three times in 2010, her husband instantly and legally divorced her according to an ancient Islamic law practice.

With no independent income or work experience, Akrama called her father-in-law. He let her and his granddaughters move in and tried to convince his son to return. A year later, he did, divorcing and deserting his second wife.

India allows religious communities to practice different family and marriage procedures in the name of religious freedom, though critics call for a uniform civil code that would treat all citizens, regardless of religious community, equally. 

Triple talaq, or instant divorce, is a form of Islamic divorce practiced by some Sunni Muslims in India and is condemned by many Islamic and secular institutions. Women must seek permission for divorce from their husbands, while the husband may instantly divorce her verbally, in writing, on the phone or even by text message. Many Muslim-majority countries, including neighboring Pakistan and Bangladesh, have already banned the practice.

In June, the Indian government announced it would introduce a fresh anti-triple talaq bill into Parliament this summer, after opposition to the bill’s provisions called for closer scrutiny and prevented its passing last year.

In 2017, the Indian Supreme Court ruled instant divorce unconstitutional based on fundamental rights that include Muslim women. But the Supreme Court judgement and the bill in its 2018 form are seen by some Muslims as a violation of their personal law. Muslims in India have their own personal law guaranteed under the constitution, which regulates civil issues like marriage and inheriting property.

In Sept. 2018, an ordinance approved by Prime Minister Narendra Modi went all the way to criminalize instant triple talaq with up to three years jail time for a man who uses the method, even though the anti-triple talaq bill was already under discussion in Parliament.

Those who opposed the earlier bill argued that it’s unconstitutional and discriminatory to criminalize instant divorce only for Muslim men, while all other men from Hindu, Christian, Sikh or other religious backgrounds who desert their wives only face a civil offense. 

“It happens to women of all religions,” said Kamal Faruqui, spokesperson for the All India Muslim Personal Law Board, the largest non-government organization in India that defends Sharia law but condemns triple talaq. “The whole issue right now is that anything related to Muslims is being projected and highlighted as if it’s only happening to Muslims.”

The new bill proposed, unlike the previous version, would require the deserted wife or her relative to lodge the criminal complaint, and would allow for the accused to seek bail.

According to a 2011 Census, a mere 0.056% of Muslims and 0.076% of Hindus are divorced in India, but those statistics do not capture many who separate off record without a valid divorce. 

Still, Muslim instant divorce has become a major issue in India, often making front page news. Modi’s Bharatiya Janata Party (BJP) campaigned on the promise to ban triple talaq, vying for votes from Muslim women and a better record on women’s rights. The BJP faces criticism for India’s ranking as the world’s worst country for women, based on a 2018 poll of global experts who said Indian women face high risks of sexual violence and slavery.

Shehnaz Afzal has been campaigning against triple talaq for a decade from her home and office in Paharganj, Delhi. She heads a women’s wing of the Muslim Rashtriya Manch, an organization started by her husband and supported by the Rashtriya Swayamsevak Sangh (RSS), the Hindu nationalist grassroots network behind the BJP’s rise to power. She has consulted with BJP lawmakers on triple talaq.

“Ten to 20 years ago triple talaq cases were very rare, but today these incidents are quite frequent,” she said. “Now it has become a norm to go for a triple talaq on the phone or any other way.”

Since the RSS and BJP are known for anti-Muslim rhetoric, Afzal faces a lot of resistance in her local Muslim community, who views her as un-Islamic and a puppet of Hindus.

“The mualvis [male Islamic scholars] would say women don’t have agency to take decisions in Islam,” Afzal said. “But women will come to me and I suggest them to go to courts and file a case against their husbands who say talaq.”

The women’s rights movement in India began rallying to ban triple talaq in the 1960’s, but the political party in power then, the opposition to BJP called the Congress Party, depended on the Muslim vote bank and did not ban it.

Today, the All India Muslim Personal Law Board’s opposition to triple talaq represents a mainstream Muslim support for its ban, but they question why a civil offense has been made criminal.

“We had issued an advisory to the entire community asking them not to give triple divorce under any justification,” Faruqui said. “The girl or parents have all conditions for divorce put into writing that divorce will only be made when all conditions are met, but the government is not interested in that. They are interested in making a political point of it.” 

The All India Muslim Personal Law Board runs a helpline for Muslim women facing desertion and seeking financial support from their husbands.

Critics of criminalizing instant triple talaq also argue that it could encourage polygamy.

When Akram’s husband returned, he began regularly beating her. She eventually fled to her mother’s house with her daughters, now teenagers. Last year, he married another woman, his third wife. She’s pursuing the case in a family court. Her husband, who works in a glass paning shop in Old Delhi, has never provided any financial support, despite the requirements of the law.

“He has not paid us one single rupee,” she said. “Instead, he is ready to pay Rs. 20,000 ($275) to a lawyer, and the lawyer is saying he won’t be able to give me money.”