Women's right to divorce

Not about gender equality

Print edition : September 15, 2017

AMID all the euphoria that greeted the triple talaq judgment invalidating instant triple talaq, a lot of noise has been made for the “poor, helpless, voiceless” Muslim women. The judgment has been hailed as a milestone in gender equality. Prime Minister Narendra Modi hailed it as “historic”. “It grants equality to Muslim women and is a powerful weapon for women empowerment,” he said. Bharatiya Janata Party (BJP) president Amit Shah said: “The judgment marks the beginning of a new era of pride and equality for Muslim women.”

However, observers say that Muslim women’s rights, including the right to annul a marriage, are well protected by the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1938, and the the scriptures. The seasoned legal expert Faizan Mustafa said: “No, there is nothing on gender justice in this judgment. They decided on arbitrariness, not discrimination.”

Women’s right to divorce

He added: “The media are biased. Yes, many forms of divorce are available to women, particularly khula [divorce initiated by the wife] is routinely used. As a matter of fact, in most Muslim divorces the initiative of divorce is taken by wives. In Chennai and Hyderabad, it was found that most restitution-of-conjugal-rights cases were filed by Muslim men to get back their wives.”

The provisions of the khula are safeguarded by the Quran, unlike instant triple talaq. Under these, a woman can obtain divorce from her husband without assigning any reason. Her right is all powerful. The husband cannot say no to khula. The qazi, who is supposed to help formalise it, cannot ask her to reconsider the decision or ask the possible reason for the action. He only has to tell the man to accept the inevitable. Interestingly, she does not necessarily have to return the mehr amount if already paid, or any gifts she might have got from her husband. She may, however, give away mehr if the husband insists.

Once the khula is pronounced, the woman is not supposed to live under the same roof as her husband. This is meant to protect her from physical assault by the divorced husband and is in contrast to the talaq provision where the couple must stay together between the pronouncements to give reconciliation a chance. But under khula, the woman’s word is final, unambiguous and unchallenged.

Khula and Indian law

Khula is recognised in Indian law. The Muslim Personal Law (Shariat) Application Act, 1937, specifically mentions it as a form of divorce at the initiative of the wife. Further, the State laws of Assam, West Bengal, Bihar, Odisha and Meghalaya provide for registration of khula. The High Court of Kerala in Shihabudheen vs Shybi held that the consent of the wife constitutes a valid khula: this ruling came close to blurring the line between khula and divorce through mutual consent, popularly known as mubarat.

However, khula is not the only way a woman can end a marriage. She has five other forms of divorce available to her, which makes nonsense of attempts to portray the Muslim woman as helpless, vulnerable and in need of support from right-wing politicians. The other forms include talaq-e-tafweez, under which the husband vests his wife with the right to divorce at the time of nikah itself. Among the conditions that can be put in it is stopping the husband from taking another spouse. In case things do not go well between the couple, the wife can end the marriage. In Saifudeen Sheikh vs Soneka Bibi, the Assam High Court cited an ante-nuptial contract embodied in the kabinnama that in case the husband brought any of his other wives to stay with the petitioner without her consent, she would be at liberty to exercise the right to divorce. Before that, in Moharam Ali vs Ayesha Khatun, the Calcutta High Court upheld this kind of agreement under which the wife was authorised to divorce her husband in case he married any other woman.

Then there is mubarat, which is held irrevocable by Shias and Sunnis. Mentioned in the Muslim Personal Law (Shariat) Application Act, 1937, it is an out-of-court divorce. Women also enjoy the right to judicial divorce, that is, fuskh, where a qazi can annul the marriage on the application of a wife.

Interestingly, for all the jubilation around the triple talaq judgment, talaq is faced by a minuscule percentage of Muslim women. The majority of women who do face triple talaq follow the Quranic prescription of attempting reconciliation through arbitration. The failure of these attempts leads to a single pronouncement followed by another a month later, and a final one after another month. According to statistics, fewer than 1 per cent women are divorced through arbitrary text messages, WhatsApp messages, phone calls, and so on. As stated by Mustafa, “The Muslim law protects the integrity of marriage and the character of the woman. If the husband indulges in slandering his wife, she is entitled to divorce. It is called lian and is a distinct form of divorce under the Shariat Act, 1937.”

Ziya Us Salam