Triple talaq: India's top court bans Islamic practice of instant divorce

Indian Muslim women participate in a rally to oppose the Uniform Civil Code (UCC) that would outlaw the practice of "triple talaq" in Ahmedabad in 2016.

Story highlights

  • The controversial Islamic practice of triple talaq allows men to divorce wives instantly
  • The five-judge bench did not unanimously ban the practice, with only three judges ruling it was unconstitutional

New Delhi (CNN)India's Supreme Court banned the controversial Islamic divorce practice known as "triple talaq" in a landmark ruling announced Tuesday.

The practice, that stretches back over a thousand years, allows a husband to divorce his wife by simply saying the Arabic word for divorce, talaq, three times.
    The five-judge bench did not unanimously ban the practice, which Balaji Srinivasan, one of the lawyers on the case, called "disappointing." Instead, three judges ruled that it was unconstitutional, while the remaining two judged that it should be up to the country's parliament to pass legislation officially banning the practice.
    "The majority decision is that triple talaq is banned in law," said Srinivasan. "From now on in India, the law is that there is no practice of triple talaq which is held to be valid."
    Much of the legal argument hinged on the question of whether striking down the practice would violate religious freedoms. However, the judge in the majority ruling concluded, on the basis of an act in 1937 that enshrined Muslim legal beliefs and traditions into law, anything that was "anti-Quranic" was therefore banned and didn't deserve constitutional protection.
    According to the majority ruling, "triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat ... What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well."
    Indian Prime Minister Narendra Modi, who has publicly advocated for a ban, added his voice to those celebrating the ruling. In a tweet on his official account, the prime minister called the court's decision "historic," adding that it "grants equality to Muslim women and is a powerful measure for women empowerment."
    The Supreme Court had convened a special summer session to hear the much-anticipated case -- alongside others of constitutional importance -- in May, when it is normally in recess. It would otherwise take years to hear these cases, said the Chief Justice, according to local media
    "We welcome the judgment completely," said Noorjehan, who goes by one name, co-founder of the Indian Muslim Women's Movement, also known as the Bharatiya Muslim Mahila Andolan (BMMA).
    "It's been 10 years of a struggle on the 8 percent of the population, so that's a big respite, and a big relief."
    A verdict could have come as early as May, but the Supreme deferred its judgment in the contentious court case.
    India has the world's second-largest Muslim population, but, unlike other countries with significant Muslim populations such as Pakistan, Bangladesh and Indonesia, has yet to officially pass legislation outlawing triple talaq.

    No legal recourse

    The controversy around talaq stems from how it is practiced in modern day societies. According to Islamic belief, it should be a deliberate and thoughtful practice, carried out over the course of several weeks.
    Yet, in its practice, men give the command without warning, uprooting a woman's life.
    Often it is said in a fit of anger. Sometimes, it's delivered through the cold medium of a Whatsapp message.
    One of the women who has suffered from the practice is 30-year old Farha from Jaipur.
    Farha's husband divorced her in October 2016, during a festival, when he became angry that their daughter had asked him for five rupees to purchase some fireworks.
    Farha, far right, says her husband divorced her last year by saying Talaq three times.
    Farha's husband works in the family business of selling diamonds, but she was left to fend for herself without any sort of allowance. "He hasn't given me a rupee since our divorce," she told CNN in January.
    Without money, she couldn't leave the house of her ex-husband.
    There was no easy way to pursue a case in court as the practice of talaq is not formally banned. Without legal recourse, Farha had to pursue other options.
    She ended up approaching the BMMA for help.
    With their support, Farha was able to bring her divorce case in front of other members of her community, and, through that pressure, she received alimony from her husband.

    Decades-long fight

    This triple talaq petition before the Supreme Court is not the first.
    In 1985, a woman named Shah Bano fought a case in the Supreme Court against her husband after he left her without providing her money to live on her own.
    Her husband was a well-established lawyer. She was already in her seventies at the time and was left with a minimal amount of money per month.
    The court ruled in her favor, but the case set off a frenzied response from Muslim religious leaders who saw the judgment as a breach against their religious identity.
    They were incensed that the government had applied a "uniform" law to an area they believe should be governed by religious law -- and they were worried it would further erase their rights as a religious minority.
    Indian Muslims take part in a protest rally against the implementation of a Uniform Civil Code in Mumbai on October 20, 2016.
    In India, each religious community has their own set of laws based on their religious texts which govern family matters. The idea is that Hindus are governed according to practices outlined in Hindu texts, Christians, the Bible and Muslims, the Quran.
    In practice, however, "the family law system in India is a very big mess," said legal scholar Tahir Mahmood in an interview in February.
    Since India's independence, various politicians have proposed an overarching law known as the Uniform Civil Code, which would make separate religious laws obsolete -- creating one system for every citizen.
    India's current government, led by the Bharatiya Janata Party, favors such a law.
    Opponents fear that a ban against triple talaq will start an erosion of their religious rights and lead to the passing of a Uniform Civil Code.
    "It is our fundamental -- given in the constitution -- right to abide by our personal laws. You cannot snatch our right from us," said Mohammad Jafar, a life member of the All India Muslim Personal Law Board, the legal organization opposing the petitions filed in the Supreme Court, in an interview with CNN in February.

    Petitions and politics

    In spite of the opinion of male Muslim leaders, momentum for a triple talaq ban has gradually increased over the years as Muslim women started to speak up.
    It's made for seemingly contradictory alliances.
    In March, a million women put their signatures behind a petition against triple talaq.
    The petition was sponsored by the Muslim Rashtriya Manch (MRM), an Islamic organization affiliated with the right wing Hindu Rashtriya Swayamsevak Sangh (RSS).
    The momentum for a ban has reached the highest levels of power, too. India's prime minister Narendra Modi first spoke out against the practice in 2016, arguing that India cannot allow the lives of Muslim women to be ruined by three words over the phone, and the issue has been linked to BJP's electoral success in a crucial local election in Uttar Pradesh. He again raised the issue a week ago in his speech on the 70th anniversary of India's independence.
    But for the women fighting the case, at the end of the day, the fight is not political. It is about true equality.
    "My creator cannot create me in a way that I am subservient to another human being. My creator cannot make me secondary to a man just because I'm a woman," said BMMA co-founder Noorjehan in January.
    "That gave me strength to question patriarchal attitudes. I'm equal to anybody in this world."