Triple talaq has been declared unconstitutional – but not everyone is celebrating

Aarefa Johari

On Tuesday morning, as a five-judge bench of the Supreme Court struck down triple talaq with a 3:2 majority verdict, Gausiya Ahmad was ecstatic. “Thank Allah, it has finally happened!” she said. “How could they take so long over this decision when something like demonetisation could happen overnight?”

Gausiya, a 28-year-old Unani doctor from Maharashtra’s Bhiwandi town, is among the many Muslim women who have been at the receiving end of triple talaq, a form of instantaneous, unilateral divorce that can be pronounced only by men. Gausiya had an arranged marriage in 2014 and suffered violent dowry harassment for a year before her husband – upset over the birth of a daughter instead of a son – gave her triple talaq through a written “legal” notice.

Gausiya has refused to accept the legitimacy of this divorce, and on Tuesday, the Supreme Court validated her views. The majority bench described triple talaq as “arbitrary”, “bad in law”, not integral to religious practice and violative of constitutional morality.

The apex court’s verdict comes as a momentous victory for the many Muslim women and organisations who have been litigating against triple talaq since Shayara Bano, a victim of the practice, filed her writ petition in 2016. However, even as a section of India’s Sunni Muslim community celebrates this judgement, the reaction among victims of triple talaq – almost all of them victims of domestic violence as well – has been mixed.

While some are happy that Muslim wives can no longer be discarded in one sudden stroke, others are concerned that the outlawing of triple talaq will bind them to abusive marriages. Meanwhile, women who have been given triple talaq are eager to know whether the Supreme Court’s judgement will be applicable retrospectively.

‘Husbands should be punished now’

“This is a very good verdict, and I believe it should be applicable to old cases like mine as well,” said Zeenat Sheikh, a 40-year-old Mumbai resident who endured extreme domestic violence for 20 years before her husband pronounced oral triple talaq in a fit of anger in December 2016. He followed it up with a written talaqnama with the phrase “I divorce you” written thrice in one go, and the maulvis (priests) that Zeenat consulted gave her conflicting opinions on whether this form of instantaneous divorce was valid.

Even though Zeenat is fighting a domestic violence case against her husband in court, she spent months feeling conflicted about her divorce. She wanted to see her husband punished for his cruelty, but she was afraid of the societal stigma of being a divorced woman, and a part of her continued to love the man she had lived with for so many years. Now that the Court’s verdict is out, she has made up her mind. “These husbands who give triple talaq should be jailed, and I want the government to make sure women like me are given something to fall back on, like a part of the husband’s property,” she said.

In Bhiwandi, Gausiya is equally determined to see her husband punished not just for violence and dowry harassment, but also for uttering triple talaq. “Why should these men go scot-free? I will find out from my lawyer if it is possible to file a case against my husband, now that the Supreme Court has made triple talaq illegal,” said Gausiya.

‘How do I free myself from my husband now?’

Other triple talaq victims, however, feel very differently.

Shamshad Begum, a 58-year-old domestic worker in Mumbai, has been upset ever since she heard about the Supreme Court’s verdict. She has been suffering through physical and emotional domestic violence since the very first day of her 35-year-old marriage, and has spent years trying to get her husband to divorce her through triple talaq. “But my husband refuses to divorce me, so how do I free myself from him?” said Shamshad Begum, who has been turned away by the police every time she tried to report her husband’s cruelty.

While triple talaq can only be pronounced by men, Islam allows Muslim women to divorce their husbands through khula, a procedure in which the wife returns her mehr (bride price) to the husband in order to break off the marriage. In Shamshad Begum’s experience, however, this kind of divorce is completely controlled by the priests, leaving little power in the woman’s hands.

“I have tried giving my husband khula several times, but the maulvis always said that they can grant it only if my husband personally comes before them, which he never does,” she said. Even though Shamshad Begum has been living separately, in her brother’s house, for the past seven years, her husband still occasionally shows up and beats her. “I used to have hope that he would some day agree to just divorce me, but now even the Supreme Court is not on my side,” she said. Although the court’s decision to strike down triple talaq does not mean Muslim men can no longer divorce their wives, there is still a lot of uncertainty in the community about what lies ahead. That explains the anxieties of women like Begum.

In Mumbai’s Dharavi slum, 25-year-old Sabina Khan is also angry with the Court’s judgement. “This verdict is wrong, it is against Islam and what our Prophet pronounced,” said Sabina, who put up with domestic abuse and divorce threats for four years before her husband finally gave her triple talaq in 2015. Ironically, while Sabina has accepted the oral divorce as valid, her husband and his family have refused to accept it and have dismissed it as a “mistake”.

“Now the Court has validated my husband’s family, but I am going to go by what my religion says,” said Sabina. “My husband has already divorced me and has anyway not shown his face to me for two years. So I will marry again if I feel like it.”

‘Issue blown up by the BJP’

Many Muslim men have had similar reactions to the Supreme Court verdict, and are particularly upset about the politicisation of the debate around triple talaq.

Maulana Mahmood Daryabadi, the general secretary of the All India Ulema Council, claims that the Supreme Court is trying to interfere with matters of religion. “Religion is followed from the heart, it cannot be subjected to laws,” said Daryabadi, pointing out that 3.5 crore Muslim women across India had signed a petition by the All India Muslim Personal Law Board to say that they are not against triple talaq. “This judgement is trying to prevent millions of Muslim women from practicing their religion.”

Intezar Qureshi, a meat shop owner in suburban Mumbai, also describes triple talaq as an integral part of his religion. He believes that men do not arbitrarily pronounce it without a “valid reason”. “If my wife doesn’t listen to me, what am I supposed to do? Why should our Islamic divorce be illegal?” said Qureshi. “This issue has been unnecessarily blown up by the BJP government to target Muslims and to please their Hindu vote bank.”

Gausiya Ahmad, however, points out that there are several Muslim men who are caught in a dilemma with respect to triple talaq. “I know many men in my neighbourhood who are against this kind of divorce,” she said. “But they just feel compelled to defend an attack on Islam. That’s why they don’t speak up.”

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