The issue has gone all the way to India’s supreme court. On May 11, a five-judge constitution bench will begin hearings on the constitutionality of triple talaq. The Muslim Personal Law Board, a group of self-declared custodians of Islam, has contested attempts to ban triple talaq, even telling the supreme court that it’s “better to divorce a woman than kill her.”
The triple talaq debate has pushed the issues of feminism, multiculturalism and secularism into an unwieldy national argument. India is behind the curve on triple talaq; countries that we sometimes scoff at for being theocracies — such as Pakistan — compared to India’s pluralistic democracy have scrapped or reformed the archaic practice. More than 20 Muslim countries have done away with this method of divorce.
A recent study shows that for every Muslim man who is divorced there are four divorced Muslim women in India. Since the country has not yet adopted uniformly applicable family laws, the orthodox and mostly male Muslim clergy has been able to stonewall the call for reforms led by thousands of Muslim women. So, men are able to abandon (mostly poor) Muslim women, without providing financial support — in some cases, they have snatched away the custody of the children.
These split-second divorces are often adjudicated by the neighborhood qazi (cleric) instead of civil courts, resulting in a parallel sharia law that governs the lives of Indian Muslims. The most heinous dimension of triple talaq in India is the practice of nikah halala, a disputed practice that decrees that a woman must marry, have sex with and then divorce another man before she can remarry (now halal) a man who divorced her by triple talaq. In India, more than 1 million Muslims, most of them women, have signed a petition backed by the Rashtriya Swayamsevak Sang, the BJP’s ideological mentors, asking for triple talaq to be abolished.
Muslim women have been let down infamously by India’s politicians. In 1986, then-Prime Minister Rajiv Gandhi overturned a Supreme Court decision to grant 179 rupees in alimony (less than three dollars) to a poor woman named Shah Bano as monthly maintenance. He decided to pander to the Muslim hard-liners in a case that is still cited by the right wing as an example of secular hypocrisy.
You would expect all of us Indian liberals to unhesitatingly demand the scrapping of this medieval diktat of triple talaq and demand an early implementation of what the constitution calls a “uniform civil code” — secular laws that make no religious exemptions on basic notions of equality. But the triple talaq issue has been mired in politics. Narendra Modi’s government, led by the BJP, has actively called for a ban on the retrograde custom. Critics of the BJP, both within the women’s movement and the opposition parties, say that although triple talaq is terrible, the BJP’s interest in it is suspect. They argue that Muslim women are being used as pawns in the right-wing party’s efforts to foist Hindu nationalism on India’s diverse polity.
Many liberals who have been ambivalent about supporting a uniform civil code have it wrong. Yes, there are many reasons to protest majoritarian politics that marginalize the rights of India’s Muslim minority — which makes up 14 percent of the country: the BJP’s dismal political representation of Muslims (in the recent election in India’s most populous state, the party won without a single Muslim candidate); the inflammatory anti-Muslim rhetoric of some of its legislators; the recent murderous violence against Muslim cattle traders by right-wing groups, all in the name of protecting the cow (which is holy to Hindus) — all of these are issues that merit our outrage. But the call to scrap triple talaq and demand secular laws that privilege the rights of women should be endorsed without prevarication. It’s a fundamental question about the rights of women of all faiths.
Liberals have objected to a uniform civil code on the grounds that it is a euphemism for a Hindu-fication of the civil law or an extension of the BJP’s Hindu nationalism. Yes, the orthodoxies of all faiths have rituals and traditions that militate against equality for women to differing degrees. In some Hindu temples and prayer areas, menstruating women are not allowed in. Studies show little difference percentage-wise between Hindus and Muslims when it comes to marrying off girls when they are grossly underage — according to the last Indian census, nearly 8 million girls were married off before they turned 10. For years, Christian women did not enjoy equal succession rights to property. This patriarchal collision between faith and freedom is not unique to India. The United States is still grappling with the clash between religious beliefs and a woman’s reproductive rights to contraception and abortion.
But despite violations that continue in practice, legally, Hindu laws have been reformed from time to time. In India’s case, the scrapping of triple talaq, should it happen, would not only be an opportunity to demand the end of all religious laws but also could usher in the birth of a post-religious constitutionalism that upholds equality above rituals. Yes, a common legal code must not be a Hindu charter or hegemonic in character; it can draw from the ideals of all religions, but it must be rooted in agreed principles of justice and parity. Feminism must triumph over faith.