Divorce in Islam takes three forms, i.e, ahsan, hasan and talaq-e-bidat (triple or instant talaq). Even though ahsan and hasan are revocable, bidat is irrevocable. It is when the husband declares divorce at one go. It is majorly prevalent among Muslims who follow the Hanafi Islamic School of Law.
The issue came to the media’s attention in 2016 in light of Shayara Bano, who was divorced by her husband after 15 years of marriage. She was also a mother of two kids. The Supreme Court had also questioned in October 2015 whether Muslim personal law practices of marriage and divorce reduce women to just ‘chattels’. The Court also mourned the chance to address gender inequality in the Shah Bano and Daniel Latifi case. Talking about the former case, the Court only urged the legislature to outline the Uniform Civil Code while in the latter one; it advocated the right of Muslim ladies to be supported till re-marriage. The order was supported by numerous Muslim women and welfare organisations. A downside here was that the Court addressed only bidat, not polygamy, which too advocates discrimination based on gender.
Marriage is considered as a contract in Islam. There are well-laid procedures on how to annul it. Though a wife can ask for a divorce only under khul’a, the husband can instantly end the marriage by a triple talaq.
“None of the Quranic guidelines of discussion, arbitration, witnesses, specified time period or even a genuine attempt to resolve differences are being followed. In such circumstances, the question of alimony or the rights of children doesn’t arise,” Zakia told Al Jazeera in a 2015 interview.
The recent practice of triple talaq through texts and emails has been highlighted by the activists. As indicated by the survey of Bharatiya Muslim Mahila Aandolan, more than 90% out of the 4,710 women questioned, demanded a ban on unilateral separation. So far, there is little information on the number of talaqs through phones and SMS, while the information given by BMMA has been under criticism for not uncovering the methodology as well as sample sizes.
The Supreme Court bench did rule triple talaq in February 2015 to be unconstitutional in a number of cases. Talking about the cabinet and the ruling majority, Prime Minister Narendra Modi has asked his ministers to not politicise the matter but the Rashtriya Swayamsevak Sangh has been quite vocal on banning and changing the practice by introducing a Uniform Civil Code, which has garnered a considerable opposition from many in the Muslim community.
On the other side, Flavia Agnes, a prominent women’s rights lawyer, at a seminar at Aliah University in the eastern city of Kolkata, said that illiteracy and lack of awareness were the biggest problems when it came to women rights. “Talaq does not extinguish her economic rights; (the ban) is not a magic wand that will solve all her problems. We have created an image that Muslim women have no rights because husbands can pronounce triple talaq,” she said.
Justice Kurian Joseph, a judge on the Constitution Bench suggested that a Muslim bride, during the wedding, be allowed to lay down a condition in the nikahnama, that she would not be subjected to instant talaq in case the marriage hits a rough patch.
Triple talaq has been banned in most of the Muslim-majority countries including Pakistan and the UAE but is still functioning in India. It raises a question on the basic constitutional rights of equality and makes women appear as goods to be possessed.