India: why a new law criminalising Muslim ‘instant divorce’ has divided feminists

Protests by the All India Democratic Women’s Association in Mumbai against the new law. Divyakant Solanki/EPA

Since a law making it illegal for Muslim men to divorce their wives by pronouncing the word “talaq” three times was finally passed by the Indian parliament at the end of July, it has been the focus of bitter argument.

The Muslim Women (Protection of Rights on Marriage) Act has already been the subject of several legal challenges from Muslim religious organisations, which see the law as disproportionate and a political move against minorities.

But the Act has also divided opinion among Indian women’s organisations – and Muslim women’s groups in particular.

The new law is the eventual outcome of a high-profile court case filed in 2016 by Shayara Bano, a Muslim woman who fell victim to talaq-i-biddat, or “triple-talaq”.

Until then, a husband’s right to unilaterally and instantly divorce his wife merely by reciting “talaq” (repudation) three times at once had been an act recognised by the law. In a landmark 2017 judgment, India’s Supreme Court declared talaq-i-biddat invalid and unconstitutional, and instructed the government to legislate.

After a long series of wrangles, the government’s bill finally cleared both houses of the Indian parliament, boosted by the ruling Bharatiya Janata Party’s tightened grip on power after its landslide victory in India’s 2019 elections.

Dividing opinion

But the law is highly controversial because it criminalises the practice of talaq-i-biddat, rather than merely confirming that a divorce pronounced in this way is invalid. It means that any husband pronouncing triple-talaq – whether spoken, written or electronic – can be punished with a fine and three-year jail term. Arrests can be made without a warrant, and bail is given only at the discretion of a magistrate. And the law applies retrospectively back to September 2018, meaning that earlier transgressions can now be filed with the police.

The new law, say its critics, has consciously set punishments for merely uttering words that, ever since the Supreme Court’s judgment, have no legal meaning. Opponents see political foul play at work, arguing that the government’s enthusiasm to impose criminal penalties smacks of an anti-Muslim agenda. Rather than protecting women, they argue, the government’s main intention has been to make Muslim men vulnerable to arrest.

But some of the most striking divisions are those among India’s many Muslim women’s rights organisations. While there have always been mild differences in approach between them, the law has sown real cleavages.

In 2016-17, two Muslim feminist groups facilitated the abolition of talaq-i-biddat by acting as co-petitioners in the ongoing court case. One was Bebaak Collective, a prominent women’s campaign alliance led by Hasina Khan. The other was the Bharatiya Muslim Mahila Andolan (BMMA), a national, grassroots organisation of Muslim women. Both demanded the abolition of talaq-i-biddat, and both welcomed the court ruling that invalidated it.

Since then, however, their approaches have diverged.

The Bebaak Collective, along with many other activists, signed a petition in late July condemning the new law for setting punishments for husbands. The collective argues that rather than empowering women, this law will make them vulnerable in other ways. If former husbands are jailed it could prevent them from paying post-divorce maintenance and divest wives and children of financial security. In turn, it could leave women at the mercy of hostile, vengeful matrimonial families. Questioning the government’s motives, they declared the law “not pro-women but anti-minority”.

On the other side, the BMMA welcomed the law arguing that criminal measures alone can cease talaq-i-biddat. Its leaders argue their perspective is informed by their grassroots work offering legal guidance to ordinary Muslim women. They claim that in the past two years, since triple-talaq was declared invalid, dozens of recent victims of the practice have nevertheless approached their offices each year for help. Some husbands, declaring themselves subject to shari'ah laws rather than court judges, have continued the practice regardless. Vulnerable, uninformed wives have hardly been in a position to confute them. Newspapers have also continued to report infringements of the court’s judgment since 2017.

Muslim women celebrate the passing of the law criminalising triple talaq in July. Rajat Gupa/EPA

For a law to be a real deterrent, say the BMMA’s leaders, it needs to carry penalties. They point out that other matters of personal laws, such as not paying post-divorce maintenance, already come with punishments regardless of religious community, and that talaq-i-biddat is already criminalised in more than 20 Muslim-majority countries.

Claims coming in

The BMMA’s stance has earned them criticism from their opponents. During my recent research into Muslim women’s rights in India, two BMMA activists told me that the substance of the law shouldn’t be conflated with the government that implemented it. They accused liberal feminists, who simply “say their piece on Facebook” and do not handle the everyday traumas of ordinary women, of political point scoring. “I question their feminism,” one told me, saying that liberal feminists “have achieved nothing for Muslim women” in decades.

The staff of one BMMA office in Mumbai told me in late August that since the Act passed, five women had already come to them for advice on using the new law. All plan to file retrospective claims against their former husbands for talaq-i-biddat offences since last September. It’s likely these numbers are merely a fraction of the women who may now use this new law to redress past abuses.

Ordinary Muslim women, argue the BMMA, often pass unheard in elite debates, but may find new empowerment in this law. By lifting the perpetual threat of instant divorce, this law may empower women and embolden them against perpetual threats from their husbands. For the law’s supporters, if not for everyone, this possibility overrides the ongoing disputes about its origins and intentions.