With the Supreme Court declaring triple talaq as unconstitutional, the stage has been set for the Parliament now to frame laws to regulate this practice among Muslims. One cannot help but recall a Bombay High Court order in a case involving India domiciled Pakistani musician Adnan Sami and his thrice married wife Sabbah in 2010. The Bombay High Court while pronouncing its verdict had quoted a famous judgment of the Delhi High Court of 2007 in the Masroor Ahmed vs State of Delhi case.
The Delhi High Court’s observation in parts was as follows: Classical Hanafi law, especially as it is practised in India, seems to take the opinion that triple talaq is sinful yet effective as an irrevocable form of divorce. The difficulty lies with triple talaq which is classed as bidaat (an innovation). Generally speaking, the Shia schools do not recognise triple talaq as bringing about a valid divorce. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong.
While the psychological misery caused to Muslim women by triple talaq in India is well documented, statistics tell an equally grim story. Census figures show that for every Muslim man divorced in India, four Muslim women are divorced. Coincidentally or otherwise, under Islamic law, a Muslim man is allowed to keep four wives. Since the Muslims are a closed community in India, most of these are intra-faith marriages. Even among those who consider themselves to be separated rather than divorced, the figures tell a similar story. For every separated Muslim man, there are three separated Muslim women. The number of divorced Muslim women in 2011 touched almost half a million – a 40% increase as compared to 2001. The number of divorced Muslim men although much lower than Muslim women, grew much more at almost 70% during the same period.
There also seems to be a disproportionately larger number of young divorced Muslim women in India. It seems that as Muslim women in India cross the age of 25, they are more likely to be divorced by their husbands. Census figures show that the number of divorced Muslim women between the ages of 10 to 25 was just about 70,000. However, there seems to be a steep increase in the number of divorced Muslim women beyond that age. Almost 0.22 million Muslim women in age group of 25-39 years identified themselves as either divorced or separated. By the time a Muslim woman in India reaches the age of 60 – almost half a million of them have been divorced. Till the time a Muslim woman is younger than 24 years, less than 1% are divorced as compared to their married counterparts. However, once she crosses that age threshold, the proportion of divorced Muslim women to married Muslim women rises phenomenally.
The Supreme Court’s judgment in the Shahyara Bano vs Union of India case could well have a bearing on these numbers in the near future if the Parliament now decides to frame laws in this regard.
There are differing versions of how many forms of divorce exist in Islam. In Dinshah Fardunji Mulla’s ‘Mahomedan Law’ first published in 1906, triple talaq is mentioned as one of the three forms by which a Muslim man may divorce his wife. Triple talaq called ‘talaq-e-bidaat’ is supposed to have happened when the man repeats the words ‘talaq’ three times in immediate succession or at shorter intervals. Mulla further states in his book, “The triple talaq becomes irrevocable immediately after the triple repudiation is made if this repudiation was made when the wife is pure and the husband has not had any intercourse with her during that period.”
Naturally, the All India Personal Muslim Law Board has a different interpretation of this controversial practice of divorce which is one of the reasons why a greater proportion of Muslim women are divorced in India. The All India Personal Muslim Law Board in its counter-affidavit filed before the Supreme Court in the Shahyara Bano case has stated that there are eight forms of divorce and separation in Islam in which the divorced woman does not have to marry another man in order to re-marry her divorced husband. It is only in the ‘ninth form of divorce’ – the triple talaq – that a woman is forced to marry another man to come back to her husband. The Muslim Law Board says that a triple talaq is effected when a husband may in one go or at different times repeat the word divorce thrice and clarify that he did not repeat it for emphasis; his intention was to pronounce triple divorce. When this triple talaq comes into force, she could lawfully re-unite with her divorced husband under two circumstances. Firstly, she marries another person and irrespective of whether she has had sexual relations with him, her husband dies. The other scenario is if her second husband has sexual relations with another woman and decides to divorce her.
As is evident, a woman who has been divorced through triple repudiation is left with no choice except to marry another man to re-unite with her husband or to be at the mercy of another man to have sexual relations with another woman in order to divorce her.
The All India Personal Muslim Law Board, which is listed as respondent seven in the Shahyara Bano case defended the practice of triple talaq in its counter-affidavit before the Supreme Court. The counter-affidavit states, “The rationale behind this command there was no norm to govern divorce in the pre-Islamic period of ignorance. Husbands used to divorce wives repeatedly and took them back in marriage. This tormented her mentally and she could not secure release either. Islamic Sharia has therefore restricted the number of divorce to three, with the provision that one may take her back after one or two divorce. However, there is no provision taking her back after triple divorce. Furthermore, it has placed such a condition of her marriage with another person that if one is not sincere about retaining his wife, he dare not take her back without a valid reason and to treat her badly.”
Although Sharia law including divorce rules are imposed more strictly in neighbouring Pakistan, divorce rates among Indian Muslim women is much higher than their Pakistani counterparts. According to Pakistan Bureau of Statistics, the number divorced women in the Islamic country in the 15-19 age group stood at 0.06%. In India, the corresponding divorce rate among Muslim women in this age group stands at 0.18%. In the 30-34 age group, the divorce rate among Indian Muslim women stands at 1.29%. Meanwhile, only 0.69% of Pakistani women in this age group have been reported as divorced. The number of divorced Muslim women above the age of 34 in India is almost double that of Pakistan.
It is unclear how many such women have been subject to the humiliation of a triple repudiation or triple talaq. But it’s not just these numbers that the Supreme Court is seeking to correct. It is the right of the Indian Muslim woman to live a life of human dignity as an equal partner in her marriage that seems to be at stake.