Gender-Transformative Divorce Legislation in India
Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-bidat (triple talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word “talaq” (Arabic for divorce) three times at once in oral, written or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) –were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India (Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition underscored how protection against these practices has profound consequences for ensuring a life of dignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.
In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a majority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two held it to be unconstitutional while the third relied on case precedents to reiterate that such practice was impermissible under Islamic law.
The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.
This decision means triple talaq is no longer legal throughout India. Following the judgment, and on its own initiative, the government introduced a bill criminalizing triple talaq. The Lok Sabha (Lower house of India’s bicameral Parliament) passed this bill in December 2017 and in accordance with India’s legislative process, it is currently before the Rajya Sabha (Upper house) where a united opposition has demanded that it be sent for review to a parliamentary committee.
- Bharatiya Muslim Mahima Andolan
- Bebaak Collective
- National Women’s Commission
Women’s rights groups and other human rights and social justice organizations in India have widely celebrated this historic judgment, which advances the essential constitutional values of equality, dignity and secularism. While Muslim women have challenged triple talaq in courts previously, this was the first instance where a Muslim woman had challenged a triple talaq divorce on the basis that her fundamental rights under the Constitution had been violated. While the Court did not address gender discrimination explicitly, it is instructive to note that even the dissenting judgment noted “…that all concerned are unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’ is gender discriminatory”.
The Bharatiya Muslim Mahila Andolan (BMMA), a rights-based mass organization led by Muslim women, and a party in the current case, conducted a study in 2015 which found that approximately 1 in 11 Muslim women were survivors of triple talaq, the majority receiving no alimony or compensation. This practice has left thousands of women destitute, at times rendered homeless overnight along with their children. In India different religions (for example, the Hindu, Muslim, and Christian communities) are governed by their own personal law in family matters, pertaining for instance, to inheritance, property rights, marriage, divorce and so on. It is possible, to an extent, to opt out of these personal law systems. However, these systems remain widely prevalent and often incorporate systemic discrimination against women. One commentator notes that, “[t]he subtext of all personal laws, regardless of religion, is that women are not equal to men”. This reality undermines the ability of women to realize their other human rights, including in relation to housing, land and resources in general. As reflected in a 2013 consultation with members of the International Land Coalition’s network, “[widespread] gender-based discrimination in laws, customs and practices cause severe inequalities in [women’s] ability to access and control land and other natural resources, and limit their participation in decision-making in land governance, from the household to local and national institutions”. The decision is particularly relevant because it addressed a practice within the ambit of personal law through the lens of structural equality and within the framework of fundamental rights. Now, in a limited way, it will be feasible to test and challenge other discriminatory personal laws against fundamental rights.
A lawyer involved in this case noted, “[t]he most important takeaway is that it has unleashed the energy of Muslim women who for the last 25 years have been working on this issue”. The case was driven by relentless grassroots activism and led from the front by women affected by the practice, strengthening the galvanization of women activists from the Muslim community working towards the realization of a range of human rights.
While this case is a significant recognition of women’s experiences and confirmation of their rights, subsequent events are a reminder that a sustained advocacy strategy is needed to ensure that other groups do not frame decisions to support their own interests. The National Alliance of People’s Movements (NAPM) highlights this tension by noting “…the propensity of the current ruling dispensation…to appropriate…this judgement and…use it to brand the Muslim community as regressive”. For example, the government bill has been criticized by certain commenters as being less about gender justice and more about political persecution of a minority community. NAPM notes further, “…the need to re-emphasize that patriarchy needs to be fought within and across religions and legal reform must move in that direction, in consultation with women [and that] [demonizing] minority religions, with a majoritarian and authoritarian approach…will be challenged, by all progressive forces”.
This summary was prepared by ESCR-Net and reprinted with permission.