What the Criminalization of Instant Divorce Means for India’s Muslims

The change has long been sought by women’s groups, but some activists say the move is government interference in Muslim personal law.

In January 2016, Afreen Rehman, a resident of Jaipur, in northwest India, was recovering from a road accident when her husband sent a letter to her maternal uncle and grandfather.

Syed Ashar Ali Warsi had handwritten the word talaq thrice. Their marriage of 16 months was over.

Warsi had used an interpretation of Islamic law that allows a husband to annul a marriage by uttering the word talaq—Arabic for “divorce”—three times. The practice is commonly known as “triple talaq,” or instant divorce.

On Tuesday, India’s Parliament passed a bill to criminalize the practice of instant divorce. A man who imposes an instant divorce on his wife faces up to three years in prison as per the Muslim Women (Protection of Rights on Marriage) Bill of 2019. The bill awaits presidential assent, which it is expected to get.

Women’s-rights activists, Islamic groups, and political parties are divided on the contentious issue. Many Muslim women’s groups have demanded the change, saying that the tradition of instant divorce is detrimental to them. (The custom is banned in more than 20 Muslim countries, including Egypt, the United Arab Emirates, Pakistan, and Bangladesh.) More conservative Islamic organizations say that the government has no business getting involved in what is, in effect, a religious practice. Other activists acknowledge that the change is needed, but say that it comes at a time when Hindu nationalism is the dominant political movement in India and as religious minorities, especially Muslims, are becoming more and more marginalized in the country.

Instant divorce is far from universal among Indian Muslims. There is no mention of it in the Koran, which says that a couple chooses separation once they have made all possible efforts to resolve their differences. The custom is attributed to the hadith—the record of the traditions and sayings of Prophet Muhammad, which is held in high regard by Muslims.

Indeed, in practice, some Muslim sects believe that a marriage can continue if the husband decides to reconcile within three months of him conveying talaq. A wife cannot obtain instant divorce. Instead, divorce initiated by a wife is called khula—and is obtained through arbitration in Muslim courts.

After the bill’s passage, Indian Prime Minister Narendra Modi tweeted: “Parliament abolishes Triple Talaq and corrects a historic wrong done to Muslim women.”

The clamor around instant divorce has been building for the past decade. In that time, there have been reported cases of Muslim men, such as Rehman’s husband, carrying out instant divorce through letters, text messages, emails, and WhatsApp messages—without providing alimony or financial support.

The Bharatiya Muslim Mahila Andolan (BMMA), a women’s-rights group, spearheaded the campaign for the ban. The BMMA raises awareness on the issue and provides legal aid to women who report misuse of divorce provisions.

Rehman was exploring options to make her husband accountable when she was introduced to BMMA members. She and others who were divorced in a similar manner filed a lawsuit that made its way to India’s Supreme Court. In 2017, the court declared instant divorce illegal and unconstitutional. In effect, the judgment meant that such divorce could not end a marriage.

The Bharatiya Janata Party–led government’s stance is that it enacted the law this week to reinforce the court ruling. Law Minister Ravi Shankar Prasad told the upper house of Parliament that more than 300 cases have come to light since the court’s judgment. The government maintains that Muslim women are vulnerable both socially and financially because of an absence of reforms in the Muslim community. There is no official data on the prevalence of instant divorce in India.

But the passage of the law also raises questions about whether the government should involve itself in what is essentially Muslim personal law. At issue is the practice of religion in India. To account for a diverse population of different faiths, the framers of India’s constitution, which was adopted in 1950, allowed every religious group to formulate personal laws. So, a Hindu would be allowed to follow Hindu rules for marriage; ditto Christians and those of other faiths. (Couples also can—and do—choose to marry under the secular Special Marriage Act.) For Muslims, who constitute 14 percent of India’s 1.3 billion population, family matters, including marriage, divorce, and inheritance, come under the purview of Muslim personal law.

An analysis of Indian census data conducted by Abusaleh Shariff, an economist at the U.S.-India Policy Institute, based in Washington, D.C., and Syed Khalid, a research associate at the Centre for Research and Debates in Development Policy, showed that the number of separated and abandoned women in India, at 2.3 million, is twice the number of divorced women. If the government were serious about women’s rights, the researchers said, it would introduce reforms across communities, rather than focusing on one religious practice pertaining to Muslims.

The BMMA calls that argument irrational. Just “because there is no law against terrible spouses in other religions, a law specifically meant to punish Muslim men, when the complaint is initiated by the aggrieved wife or her family, [isn’t] discriminatory,” Mariya Salim, a researcher and BMMA member, told me. She said that rather than being a victory for the BJP, the bill’s passage is “the triumph of Muslim women fighting against the unconstitutional and non-Islamic practice.”

Opposition parties, as well as human-rights advocates, have condemned the practice of instant divorce, but they also accuse the BJP of demonizing Muslims. They say the ban feeds into the perceived marginalization of Muslims who feel threatened by recent attacks by Hindu vigilantes. Additionally, they say, Indian Muslims face more pressing issues: Various surveys have highlighted their poor economic and social conditions.

The All India Muslim Personal Law Board (AIMPLB), an NGO that supervises the implementation of Muslim personal law in the country, says the Indian government should abstain from matters of faith, citing the Indian constitution. The AIMPLB and some Islamic scholars in India say they believe that the legislation is a step toward replacing personal laws with a uniform civil code that would encompass all Indian citizens, irrespective of faith. This idea, which they oppose, is supported by the Rashtriya Swayamsevak Sangh, an influential Hindu nationalist group that is the BJP’s ideological parent.

Additionally, says Ziya Us Salam, a New Delhi–based journalist and the author of Till Talaq Do Us Part, “The Koran gives a squabbling couple two chances for reconciliation.”

“The bill takes away a chance at any reconciliation,” he told me. “Any man jailed because of the wife’s complaint will never opt for reconciliation. The bill leaves women penniless, children practically orphaned. If the man [is] imprisoned, how will he provide maintenance to his wife? The bill amounts to a state coercion.” (Under Islamic law, a woman is entitled to seek a subsistence allowance from her husband for herself and her dependent children.)

Salam and many Muslim groups in India question the need for legislation when the Supreme Court, in multiple hearings, has struck down instant divorce. “According to the court, the marriage is intact after triple talaq. Where is the crime?” he asked.

But for Rehman and other women who pushed for the change, the bill’s passage is historic. “We cannot change whatever happened to me,” she told the Indian Express newspaper. “But we now have a way to stop this practice which has been going on for centuries.”