Triple talaq ban: 5 years after SC verdict, fewer cases, 'new problems'

Exactly five years ago, on August 22, 2017, a five-judge Constitution Bench of the Supreme Court had, by a 3:2 majority judgment, struck down talaq-e-biddat – an oppressive practice with no basis in the Qoran that allowed a Muslim man to ‘divorce’ his wife through three instant pronouncements of the word talaq.

The historic verdict in Shayara Bano v. Union of India & Others declared instant triple talaq “unconstitutional”, and thereby illegal, on grounds that it was “violative of the fundamental right contained under Article 14” (equality before the law) of India’s Constitution. Two years later, in July 2019, the Narendra Modi-led NDA government pushed through Parliament the Muslim Women (Protection of Rights on Marriage) Act.

The Act, described by most legal experts as a highly flawed piece of legislation, went a step beyond the apex court as it not only reiterated talaq-e-biddat as illegal but also criminalised. Any Muslim man who divorced his wife by way of talaq-e-biddat would, under the 2019 Act, be liable to a jail term of up to three years, though his marriage would continue to be legal.

Also read: 10-yr-old married to her rapist, given triple talaq in Uttar Pradesh

Talaq-e-Hasan in focus now

Earlier this month, the Supreme Court was approached once again to strike down another form of divorce, Talaq-e-Hasan, under the Muslim personal law – the Shariat – as being unconstitutional for being violative of a Muslim woman’s right to equality as it allows a Muslim man to divorce his wife by pronouncing talaq once a month for three consecutive months (provided the couple do not cohabit and resume conjugal relations during this period). The apex court is scheduled to hear the legal challenge to the practice of Talaq-e-Hasan on August 29.

Yet, as the debate now moves to the constitutionality of Talaq-e-Hasan, what remains uncertain is whether Supreme Court’s 2017 judgment or the Centre’s 2019 Act have made any verifiable positive impact on the lot of Muslim women wronged by the practice of talaq-e-biddat.

On August 1 last year, while marking the second anniversary of the enactment of the 2019 Act – dubbed by the Centre as Muslim Women’s Rights Day, Mukhtar Abbas Naqvi, the then Union minister for Minority Affairs, had claimed that the criminalisation of instant triple talaq had led to an 80% decline in talaq-e-biddat cases. Naqvi conceded that his claim was based on an “estimate” – as per information gathered through various women’s commissions, waqf boards, local administration, etc. – and not on any study dedicated to the prevalence of instant triple talaq. Naqvi and his ministerial colleagues, Smriti Irani and Bhupendra Yadav had said that “a database of cases was being compiled” by the minority affairs ministry to “enable a detailed analysis”.

Dip in triple talaq cases

Curiously, in the years since the 2019 Act was passed, the National Crime Records Bureau, which publishes the annual ‘Crime in India’ report hasn’t yet begun tabulating data of cases registered under the Muslim Women (Protection of Rights on Marriage) Act.

Also read: Women laud triple talaq bill, but it’s just a beginning, say activists

Zakia Soman, co-founder of the Bharatiya Muslim Mahila Andolan (BMMA), which had fought in the apex court to have talaq-e-biddat declared illegal, agrees that instances of instant triple talaq have come down significantly but says, “in the absence of any verifiable data, all estimates are based purely on anecdotal evidence”. What Soman goes on to explain inspires little confidence in the efficacy of the 2019 Act or the gains that the Supreme Court’s 2017 verdict brought to the lives of Muslim women wronged by talaq-e-biddat.

“There is no doubt that the Shayara Bano judgment or even the central law have been a deterrent because now when I work among Muslim women, I hear fewer and fewer instances of instant triple talaq but a whole set of new problems have now come into play; problems that were foreseeable but the government, despite being cautioned, did nothing about,” Soman told The Federal.

Asserting that the Muslim women – Shayara Bano, Afreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri – who had moved the Supreme Court challenging instant triple talaq “are icons for the community”, Soman adds, “but they are also martyrs because none of them could return to their husbands or marry again to find a new, happy life after the 2017 judgment or the 2019 Act… their husbands left them and faced no legal consequences”.

Shayara Bano, who had been divorced by her husband Rizwan by way of talaq-e-biddat, has been caught up in a continuing legal battle to get the custody of her teenaged children – a daughter and a son – who she hasn’t met physically in over two years. Legally, she is still Rizwan’s wife as the Supreme Court had declared their divorce void, but in reality, she told The Federal, “I am neither married nor divorced; just abandoned… he (Rizwan) refused to take me back after the verdict and married another woman.”

Also read: Triple talaq law, a travesty of justice, but triumph of politics

At least socially, Bano is still better placed as the BJP government in her home state of Uttarakhand appointed her to the state’s Women’s Commission. For the other petitioners, “there was nothing positive that followed the verdict,” said Soman.

Ishrat Jahan, another petitioner who had joined the BJP in a much publicised press conference in 2019 and was appointed secretary to the party’s Mahila Morcha, leads a life of constant financial distress. She took up tailoring to earn a livelihood after her husband, who remarried after the SC verdict like Rizwan Ahmed, “refused to take me in”. Jahan says her husband, Murtaza, who works in Dubai, “denied that he divorced me (through instant triple talaq) but he never took me back… since we are not legally divorced, he is not legally bound to pay any maintenance to me… neither the law passed by Parliament nor the judgment of the Supreme Court can help me; my only option is to file for divorce but why should I spend my money to run around courts when the Supreme Court itself held my husband at fault”.

Bano and Jahan’s induction into the BJP is worth emphasising because banning and criminalising instant triple talaq to give “justice to my Muslim sisters” was a campaign that Narendra Modi had steered himself.

Ban for BJP’s political gains?

Here, it is pertinent to recap the political drama that had run parallel to the Supreme Court’s proceedings and subsequent verdict in the Shayara Bano case. In the months preceding the Shayara Bano judgment, India witnessed a polarised debate reminiscent of the kerfuffle that had erupted in the days following another progressive Constitution Bench judgment of April 23, 1985 in which the Supreme Court had disposed of a maintenance lawsuit in favour of Shah Bano, a divorced and destitute Muslim woman.

Also read: Woman given triple talaq for refusing chewing gum from husband: Police

The political manoeuvres in 2017, however, were vastly different from those of 1985. In the immediate aftermath of the Shah Bano verdict, the then ruling Congress party under Rajiv Gandhi, despite claims of being a votary of libertarian and progressive causes, had prostrated before the conservative Islamic clergy and brought a law – the Muslim Women (Protection of Rights on Divorce) Act, 1986 – to reverse the Supreme Court’s judgment.

In contrast, the BJP-led government under Narendra Modi, with its collective baggage of being rabidly anti-Muslim and penchant for patriarchy and conservatism, took up the cudgels on behalf of Muslim women victimised by instant triple talaq.

Modi’s campaign for abolishing talaq-e-biddat stood out to many as a progressive and libertarian stand to improve the lot of Muslim women – something contrary to the BJP’s hardline Hindutva politics. More importantly, it revived the charge of duplicity and hypocrisy against the Congress because of immediate comparisons that were drawn to Rajiv Gandhi’s appalling genuflection before the Islamic clergy after the Shah Bano case.

But clearly, Modi’s designs in seeking justice for Muslim women “abandoned by their husbands, sometimes simply through talaq, talaq, talaq said over a phone call or in a letter” stood exposed sooner than expected. First, BJP MP Subramanian Swamy, Modi’s cheerleader-turned-critic in the party, declared that his party’s decision to back abolition of instant triple talaq was “part of a well thought out strategy to divide the Muslim vote and because it helped us get votes of Muslim women in states like UP”.

It is true that few today put any stock to whatever Swamy says. However, the 2019 Act too showed that Modi’s interest was in gaining quick political points and not in helping, as he claimed, “my Muslim sisters”.

‘Muslim women continue to face injustice’

Soman, who was admittedly taken in by the BJP’s “commitment towards getting instant triple talaq declared unconstitutional” said, “the law they brought in was heavily flawed right from the beginning because it was always clear that if what they proposed was passed, things will get worse for Muslim women.”

“What was clearly against the interest of Muslim women was the government’s stout refusal to countless suggestions that came from women directly victimised by talaq-e-biddat or people like me who worked with such victims who repeatedly urged the government to include in the law a properly codified mechanism for divorce, dissolution of marriage, alimony, maintenance, custody, etc… what you had ultimately was a law that sent the husband to jail for three years and closed the doors for any reconciliation with the wife and that too for pronouncing divorce that had no sanctity in law and a woman who was left abandoned but still married, thereby robbing her of any claim for maintenance or custody of children,” Soman said.

Also read: Woman beaten to death for refusing to accept triple talaq in UP

Bhopal-based Nighar Fatima (name changed on request), a victim of talaq-e-biddat who now works among Muslim women similarly wronged by their husbands, told The Federal, “it is a myth that the SC verdict or the central law have reduced cases of instant triple talaq… the difference is that earlier, husbands threw out wives after pronouncing instant triple talaq but now they simply abandon the wife and the police refuse to do anything about it… even if a husband does leave his wife by way of instant triple talaq and the wife somehow goes to the police, the husband simply denies the divorce and then leaves the wife to fend for herself.”

Soman says the abolition of instant triple talaq hasn’t abolished the injustice that Muslim women, particularly those from the poorer and illiterate sections of the community, continue to face at the hands of their husbands but feels that the situation can still be remedied if the Centre agrees to bring a codified mechanism for resolving marital disputes among Muslims. “But there seems to be no willingness on part of the government to do so… the BJP’s grandstanding on talaq-e-biddat is over; it will now move on to some rhetoric on talaq-e-hasan perhaps,” Soman said.