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Why India's Triple Talaq Debate Misses the Point
Image Credit: Flickr/ Trey Ratcliff

Why India's Triple Talaq Debate Misses the Point

 
 

For some time, especially since the Supreme Court’s recent intervention, the regressive and contested practice of “triple talaq” has been the subject of a ferocious debate in India. The practice grants Indian Muslim husbands the right to unilaterally divorce their wives by simply uttering the word talaq (divorce) three times at one sitting.

Perhaps there is no parallel in the history of the Supreme Court for hearing a matter under the gaze of so much public debate. Newspapers are abuzz with editorials and op-ed pieces, TV channels’ anchors are ranting in the news rooms, and reporters are shouting from on-the-scene broadcasts featuring burqa-clad, dewy-eyed divorced Muslim women carrying one crying child in their lap and several others standing behind, depicting the condition of divorced Muslim women from different locations of the country. The fervent coverage seeks to create the impression that the issue of triple talaq is perhaps the biggest and gravest crisis our country is currently facing.

All these fierce discussions have produced many misconceptions about Islam and the Muslim community and portrayed them in a most negative manner. Islam has been projected as a misogynistic religion and Muslims the most barbaric community, especially when it comes to dealing with women. A cabinet minister in the Uttar Pradesh government accused Muslim men of using triple talaq “only for satisfying his lust [by] changing his wives.”

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The slant of the coverage implies that Muslim women in India suffer from some of the worst forms of discrimination and assaults on their dignity qualitatively different from the women of other communities. It also gave the impression that the simplicity of the Islamic procedure of divorce has made it so rampant among the Muslim community that it warrants immediate intervention by the state.  The reality, however, is different from what has been portrayed.

recent study conducted by the Center for Research and Debates in Development Policy (CRDDP) reveals that only 0.3 percent of divorces in the Muslim community were through triple talaq, indicating that this is an aberrant and dying practice. Census data further suggests that divorce among Muslims is much lower than in the other religious groups. According to the 2011 census report, out of a total 83.97 million Muslim female population, about 212,000, that is just 0.25 percent, are divorced. If we analyze the census data along with the CRRDP findings, we would find that only a minuscule 600 Muslim women were instantaneously divorced following the abhorrent triple talaq practice.

Another misconception which has come out of this debate is that the practice of divorce among Muslims is only guided and shaped by the Islamic injunctions on the subject, completely ignoring the multiple other factors responsible for it. The role played by socioeconomic conditions and other immediate and local societal considerations in guiding Muslim divorce practices have been completely ignored in the discourse. This is a reductionist approach and completely undermines the social context in which divorce takes place.

In most discussions, it is repeatedly pointed out that there is no legal recourse available to Muslim women in the face of the Personal Law and hence they are forced to suffer continued mental and physical agony. This is again not a correct representation of the fact. Noted women’s rights lawyer and writer Flavia Agnes rightly argues that the Protection of Women from Domestic Violence Act, 2005 secures the rights of all women — including Muslim women — to maintenance, child custody/access, residence in the matrimonial home or alternate shelter, and compensation for violence inflicted upon them. Most of the women shown in news coverage also complained about the demand for a dowry as an important reason for their divorce, which could be addressed under the Dowry Prohibition Act, 1961. These acts, along with other provisions of the Indian Penal Code and Criminal Procedure Code, are routinely resorted to by Muslim women, just like their Hindu counterparts, to fight against the injustices done to them.

Most importantly, we have been made to believe that the only woe which besets Muslim women is the practice of triple talaq. Why have the other pressing problems that afflict Muslim women not been brought into focus? For example, almost half of Muslim women are illiterate. Why do we ignore the fact that among all religious communities, Muslims are the only one to have an illiteracy rate higher than the national rate? Muslim women’s lack of access to basic health facilities, which is their fundamental right, never gets media attention. The fact that the percentage of the non-working population is highest among Muslims in the country also never gets noticed. According to 2011 census data, only 15 percent of Muslim women are working, the majority of them in agriculture and other unorganized sectors. And why do we forget that among various religious groups, Muslims have the lowest living standard with the average per capita expenditure of just Rs. 32.66 (roughly 50 cents) in a day? These factors also have an important bearing on Muslim women’s exploitation through the arbitrary triple talaq practice, but they never get prioritized.

What surprised me the most was the utmost priority and urgency shown by the Supreme Court to the triple talaq issue, despite a huge backlog that has seen several other important matters waiting up to a decade for adjudication. There is an impression in the public that Muslim women approached the Supreme Court and thus proceedings in the matter began. But the fact is that the Court, while hearing totally unrelated matter, all of sudden ordered the registration of a suo motu public interest litigation (PIL) to consider the gender discrimination suffered by Muslim women. And within no time a PIL was registered and a constitution bench was constituted. The matter was heard during the summer, the proceeding was completed within a week, and now the judgment is expected to come next month. Why don’t we see similar judicial activism on numerous vital petitions pending in different courts dealing with the Hindu Succession Act or the issue of adoption and guardianship?

As of May 1, 2017 there were 60,751 cases pending before the Supreme Court, out of which there were 39 constitution bench matters and 230 referred matters, which also further include many constitution bench matters. There are 43,738 cases that have been pending for more than a year. Against this backdrop, does the triple talaq case not seem to be a matter of misplaced priority?

The outcome of the Supreme Court hearing is now almost a foregone conclusion. The court will most likely declare triple talaq as unconstitutional, as it had already categorically invalidated it in Shamim Ara vs State of UP (2002), which has been time and again reiterated by several High Courts. But will that bring real justice to Muslim women? Certainly not. On the contrary, the cacophony of triple talaq seems to have drowned out the real issues afflicting Muslim women.

If we are really sincere about ending the gender discrimination faced by Muslim women we should empower them educationally and economically. Judicial pronouncements are not enough to end a social evil enveloped in religious dogmas. Further, gender discrimination is not a problem that afflicts only Muslim women; it is equally pervasive among Hindus. We need to adopt a holistic approach to the issue of gender justice irrespective of whom it concerns: Muslim, Hindu or any other community.

Aftab Alam is a professor of Political Science at Aligarh Muslim University, Aligarh.

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