By: Shannon Leininger
Published: 3/16/2020
A bill criminalizing talaq-e-biddat, or triple talaq, was passed in India on July 30, 2019. The bill was generally regarded as a victory for Muslim women in India. Triple talaq can instantaneously – including in the form of a text message – leave a wife without a home, money, and her children. India was one of the last countries where talaq-e-biddat was legal.[1] Although the practice was declared unconstitutional in 2017 with the Shayara Bano decision, the practice has continued in some communities.[2] However, there are worries about the effects of the bill due to the prime minister’s anti-Muslim sentiments and the lack of safeguards in the bill.[3] This article is going to explain what triple talaq is, the lack of safeguards in the The Muslim Women (Protection of Rights on Marriage) Bill of 2019, and how the bill signifies the trend of the Bharatiya Janata party.
Triple Talaq or Talaq-e-biddat
Under Islamic law there are three types of divorce: ‘talaq’ divorce by the husband, ‘khula’ divorce by the wife, and ‘mubaraat’, which is divorce by mutual consent.[4] There are also three types of talaq: talaq-e-ahsan, talaq-e-hasan, and talaq-e-biddat.[5] The first two are approved by the Quran and hadith.[6] In talaq-e-ahsan the husband says ‘talaq’ once, and then there is a period of abstinence called ‘iddat’, which is a period of ninety days.[7] If the couple reconciles and cohabitates or is intimate during ‘iddat’ then the divorce is considered revoked. After this period the divorce becomes final unless they decide to remarry. If ‘talaq’ is said a third time the couple cannot remarry until the wife has married someone else, and that marriage has been dissolved. In talaq-e-hasan instead of one pronouncement, talaq is spoken three times within a period of one month between each talaq. After the third talaq the marriage is irrevocable.[8]
Whereas, in talaq-e-biddat, talaq is said three times in succession, making the divorce instantaneous. [9] Talaq-e-biddat is neither recognized by the Quran nor by hadith, but talaq-e-biddat can be traced to the second century. The talaq-e-biddat form of divorce is only recognized by a few Sunni schools, most prominently the Hanafi sect, but these schools consider talaq-e-biddat as a sinful form of divorce. [10]
The Issues with the Muslim Women (Protections of Rights on Marriage) Bill
The bill provides two forms of discontent: (1) the bill provides less allowance to divorced wives than previous law; and (2) the lack of safeguards in the bill to prevent false persecutions. The Muslim Women Bill only allowed a subsistence allowance, while the previous Muslim Women’s Act of 1986 had a provision calling for “fair and reasonable settlement after divorce.”[11] The concern is if the change in verbiage will erode Muslim women’s divorce rights instead of increasing them. However, the previous law was not effective in providing Muslim women relief. Currently in India only 79% of women reported not receiving any maintenance from their husband after a talaq-e-biddat divorce.[12] Over 40% of women were not able to retrieve their belongings after the divorce. Of the women studied 56% of women did not receive their mehr after the divorce. Mehr is a Quranic right, which is provided for the bride’s financial security in consideration of marriage that is to be delivered to the bride by the bridegroom.[13] Therefore, Muslim women had economic rights before the Muslim Women Bill, but the economic rights were not enforced.
The other concern is the penalties for triple talaq could include imprisonment for three years, a fine, and the offense is a non-bailable offense.[14] Adding to the severity of the punishment is the low burden of proof; if a married Muslim woman, or a person related to her by blood or marriage claims triple talaq has been pronounced by the husband, a magistrate could impose punishment.[15] Perhaps a better model would be one used by another country. Very few countries impose imprisonment for triple talaq, and generally require payment to the wife or a fine.[16]
Two countries that could be viable reform models for India are Tunisia and United Arab Emirates. Tunisia’s official religion is Islam, and the majority of citizens in their country are of the Sunni sect of Muslims.[17] According to Tunisia’s Code of Personal Status, “The party causing material or mental injury by the fact or divorce . . . shall be directed to indemnify the aggrieved spouse.”[18]
As regards the woman to be indemnified for material injury in terms of money, the same shall be paid to her after the expiry of Iddat and may be in the form of retention of the matrimonial home. This indemnity will be subject to revision, increase or decrease in accordance with the changes in the circumstances of the divorced wife until she is alive [sic] or until she changes her marital status by marrying again.[19]
The United Arab Emirates, is a country with a Federal Constitution that declares Arabic to be the official language, and the Shia sect is the majority.[20] The Law of Personal Status 2005 Federal Law No. 28 of 2005 Article 140(1) provides:
If a husband divorces his wife after consummation of a valid marriage by his unilateral action and without any move for divorce from her side, she will be entitled to compensation besides maintenance for Iddat. The amount of compensation . . . shall not exceed the amount of one year’s maintenance payable in law to a woman of her status.[21]
While these models would be effective ways of banning triple talaq, the models will likely not be imposed because of the Indian government’s ulterior motives.
Gateway to Other Anti-Muslim policies?
Is the criminalization of triple talaq just part of pattern of escalating anti-Islamic policies from the Bharatiya Janata Party (BJP)?[22] Before the passing of the bill, Swami Prasad Maurya, a member of the BJP party stated that “Muslims use triple talaq to satisfy their ‘lust.’”[23] Flavia Angers, a woman’s rights lawyer stated “triple talaq has become typical low-lying fruit that everybody can write on.”[24] “‘The whole debate is skewed and political, catering to the ruling government’s Muslim bashing agenda, and media is a prime player in this.”[25] Angers points out that the Muslim Women’s Act of 1986 already required a “fair and reasonable settlement after divorce,” and the biggest problems for Muslim women were illiteracy and lack of awareness.[26]
Further evidence of the Indian government’s anti-Muslim agenda is the Citizenship Amendment Bill. In December 2019, the Modi government introduced the Citizenship Amendment Bill that extends citizenship rights to immigrants from Afghanistan, Bangladesh, and Pakistan as long as they are not Muslim.[27] The bill is seen as a way to target Muslims from Bangladesh and Rohingya Muslims, who have been fleeing prosecution from Myanmar. The bill has also been criticized for being a method for prime minister Modi to increase the number of the Hindu population to increase the BJP’s majority in parliament.[28] Only one question remains: was the Muslim Women Bill the canary in the coal mine of the coming anti-Muslim legislation to come?
Conclusion
In conclusion, while the Muslim Women Bill may look like a victory for women in the Muslim community the circumstances surrounding the bill gives reason to pause. The lack of safeguards to prevent false accusations and the change in verbiage that seems to decrease the rights of divorced Muslim women creates concerns about the motivations of the bill. Furthermore, given the BJP’s history, there are rising concerns about the BJP’s plans for the Muslim community in India.
[1]. See generally Shayara Bano v. Union of India and others, Unreported Judgement 2017 (India), https://indiankanoon.org/doc/115701246/; see also Lauren Frayer, India Bans ‘Triple Talaq’ Custom That Muslim Men Use to Divorce Their Wives, NPR (Aug. 2, 2019), https://www.npr.org/2019/08/02/747719482/india-bans-triple-talaq-custom-that-muslim-men-use-to-divorce-their-wives.
[2]. Shayara Bano, supra note 1, at 4.
[3]. See Triple Talaq Bill Passed by Parliament: Is it a Day to Celebrate for Gender Justice?, INDIA TODAY (July 30, 2019), https://www.indiatoday.in/programme/news-today/video/triple-talaq-bill-passed-by-parliament-is-it-a-day-to-celebrate-for-gender-justice-1575378-2019-07-30.
[4]. Shayara Bano, supra note 1, at 11 – 12.
[5]. Id. at 12.
[6]. Collection of the words and habits of Mohammed during his lifetime and provides context to the verses in the Quran. See id.; see also What are Hadith? WHY ISLAM? (Feb. 15, 2020, 9:00 PM), https://www.whyislam.org/prophet-muhammad/hadith/.
[7]. Shayara Bano, supra note 1, at 12 – 14.
[8]. Id.
[9]. Shayara Bano, supra note 1, at 14.
[10]. Id. at 14 – 15.
[11]. Muslim Women Bill, 2019, No. 82, Acts of Parliament, 2019 (India); Saif Khalid, What is Triple Talaq or Instant Divorce?, ALJAZEERA (Aug. 22, 2017), https://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-170511160557346.html.
[12]. Zokia Soman, No More “Talaq Talaq Talaq”: Muslim Women Call for a Ban on an UnIslamic Practice, BHARATIYA MUSLIM MAHILA ANDOLAN (Dec. 19, 2019, 9:00 PM), https://bmmaindia.files.wordpress.com/2016/01/triple-talaq-report.pdf.
[13]. Id.
[14]. Muslim Women Bill, 2019, No. 82, Acts of Parliament, 2019 (India) at §§ 4, 7(c).
[15]. Muslim Women Bill, 2019, No. 82, Acts of Parliament, 2019 (India) at § 7(a).
[16]. See generally Shayara Bano, supra note 1.
[17]. Id. at 45-46.
[18]. Id. (quoting Code of Personal Status 1956 Law 13-8 of 1956 (Tunisia)).
[19]. Id.
[20]. Shayara Bano, supra note 1, at 47.
[21]. Id. (quoting Law of Personal Status 2005 Federal Law No. 28 of 2005 Article 140(1)).
[22]. The Bharatiya Janata Party is one of the most prominent parties in India. Bharatiya Janata Party (BJP), INDIA.COM (Jan. 1, 2020, 9:00 PM), https://www.india.com/topic/bharatiya-janata-party-(bjp)/. The prime minster of India belongs to the BJP and the party’s platform is the rebuilding of India in accordance to Hindu culture. Id. The party also is opposed to the “appeasement policy for Muslims” during previous Congresses. Id.
[23]. Saif Khalid, What is Triple Talaq or Instant Divorce?, ALJAZEERA (Aug. 22, 2017), https://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-170511160557346.html.
[24]. Id.
[25]. Id.
[26]. Id.
[27]. Arshad Zargar, India Government Pushing New Immigration Law that would Single Out Muslims, CBS (Dec. 9, 2019), https://www.cbsnews.com/news/india-citizenship-bill-proposed-today-by-narendra-modi-government-would-single-out-muslims-2019-12-09/.
[28]. Id.
Shannon Leininger is a first-year law student at Penn State Law. She was born and raised in Washington State and got her bachelor’s degree at Washington State University in ‘Management of Innovation and Change’. During her academic career, she was president of her debate team, a student consultant for Slumberkins, and is at minimum proficient in three languages.