1Muslim women’s rights and their religious status are the most debated and controversial issues in India because they are deeply entangled in the question of religious identity and the constitutional right to religious freedom. For this very reason, the debate has been guided more by ideological reductionism (state-centric definition of secularism v. Hindutva communalism) and political symbolism (Muslim Personal Law (MPL) v. the Uniform Civil Code (UCC)) than by actual everyday negotiations and the quest of Muslim women for gender justice in matters of marriage and divorce. The passing of the controversial Muslim Women (Protection of Rights on Marriage) Act (MWA) in 2019, commonly known as the Triple Talaq Law, exemplifies this struggle. The MWA invalidated the practice of instant triple talaq (oral pronouncement of irrevocable divorce by a Muslim husband) on legal grounds, thus making it a criminal, cognizable (arrest without warrant), and compoundable (possibility of a compromise) offense. By doing so, it claimed to “protect the rights of married Muslim women.” The fact that the law was passed by the Bhartiya Janata Party (BJP, a Hindu nationalist organization)-led regime raised multiple concerns about the supposed neutrality of the legislative action, judicial activism in family matters, and its impact on the Muslim families concerned, especially on women.
2The criminalization of divorce triggered a nationwide debate with divided opinions, even within women’s groups. Prominent Muslim women-led organizations that have been demanding a codified Muslim law regarded it, albeit reluctantly, as a form of remedy in the absence of a substantial legal appeal against discriminatory practices justified in the name of MPL. Many women’s organizations, activists, and opposition parties rejected it as a politically motivated act by the Bharatiya Janata Party (BJP) government to strip Muslims of their constitutional right to religious freedom and to push forward the agenda for the Hinduization of religious minorities by imposing the UCC as the next step.1 The process by which this law was passed, and the provisions of criminality therefore made it highly questionable, and a subject of academic scrutiny.2
3This article endeavors to examine the context, implementation and the actual social implications of the MWA by placing it within the larger debate on Muslim women’s rights in India. It also attempts to shed light on the recent history of the discourse on reforms in MPL in a polarized public-political debate about the UCC, and more generally on the status of Muslim women (and men) as Indian citizens. Evoking Muslim women’s identity, and its discursive relationship with the law, and law-centric institutions, the article contributes to emerging scholarship on law, religion, and women’s rights in India that explains how these rights are defined, and negotiated in both State and non-state legal forums. I engage with two types of literature. On the one hand, Srimati Basu and Rohit De discuss the power of law as a means of social change and its everyday interaction with people. In addressing the power of law in translating social experiences of violence into a language that could be systematically heard and responded to in the realm of legal forums, Basu argues, “Law may only be one venue of cultural negotiation, but it is a preferred one because of its regulatory power” (Basu 2006; Basu 2015:60). Similarly, while discussing the everyday life of law in independent India, De argues that constitutional law remains a key area of politics and an arena for political communication between the state and citizens in postcolonial India. He explains that people are capable of defining new meanings and interpretations to the law, and they show the potential to generate new legal norms and strategies from social and cultural contexts. In this sense, the law generates just as many disputes as it settles (De 2018). Furthermore, Eleanor Newbigin, Leigh Denault, and Rohit De, in their work on identity politics and civil society in colonial South Asia, argue that social interactions with the law encourage a creative process wherein, on some occasions, legal norms are made to fit cultural needs, and on other occasions, efforts are made to institutionalize cultural norms. (Newbigin, Denault, and De 2009). This provides a meaningful framework for understanding the nuances of the law-centric discourse and the political debates over legislative intervention in MPL; the specific context of the passing of the MWA and its reception by its intended “subjects”, that is disputing Muslim married couples. It shows how the political discourse and the provisions of the MWA and MPL produce multiple meanings of constitutional rights, equality, and social justice.
4And on the other hand, Sousa Santos and Mengia Hong Tschalaer’s framework of “inter-legality” explains the interrelationship and/or entanglement of state and non-state legal frameworks, institutions, and discourses (Tschalaer 2017: Santos 1987, 2002). Tschalaer explains, in his study of sharia courts, that inter-legality highlights the fact that sites of lawmaking and adjudication not only become spaces for meaning making but also enable cultural struggles to be transposed into legal ones, pushing for legal disputes to become culturally acceptable solutions. Although this transposition is a debatable issue (Menski 2008; De 2009), the plurality of legal norms and legal forums helps to understand the nuances of negotiations and strategies that men and women develop during disputes. Sites of lawmaking and adjudication are contested terrains. Thus, the interpenetration of criminal state law and family law needs to be critically examined for a proper understanding of their transposition and negotiation in different legal forums/institutions. The manner in which the law unfolds on the ground highlights contestation between law and political discourses, law and people belonging to religious minorities, and law and society at large. This framework is helpful for understanding the context of the MWA and the manner in which it has been received, especially the ways in which the “interpenetration between different legal and normative orders” (Santos 2002) produced a contested space.
5The article sets out to provide an understanding of how public debates are translated into legal doctrines; of how a law becomes meaningful at societal level; and how the problem concerning symbolic policies and reductionist discourses defeats the alleged purpose of the law. It also explains how non-state legal frameworks and institutions, a complex sociological field according to Vatuk, produce multiple meanings, re-establishing patriarchal structures and gendered social norms. This constitutes a broader comment on personal laws, which are considered and protected as historically evolved and culturally sensitive best practice for the women of the community.
6Here, it is important to problematize the “personal” in personal laws at two levels. Firstly, religious practices that were granted a “sacrosanct” status in personal codes contain “varied,” “invented,” and “tamed” traditions rather than the essential practices of religion (Prashar and Dhana, Stephens 2018). Second, patriarchal interpretations of the Sharia and the Hadith, which make way for the steady erosion of Muslim women’s rights, also require critical attention (Rouse 1996; Mukhopadhyay 1998; Lateef 1998; Minault 1998a, 1998b; Engineer 1999; Jaffery 2000). In this sense, the article is also an important contribution to our understanding of how MPL affects women’s rights, the problems it raises, the new strategies it encourages, and finally its impact on Muslim women’s right to a dignified divorce. I emphasize the fact that the practice of instant triple talaq must be understood in accordance with various socioeconomic factors—poverty, education, and employment—which determine the multiplicity of individual actions. One also has to move beyond the religious debates on the protection of MPL and the discussions on the minority status of Muslims in India to see how the issue of divorce is unfolding post-MWA. Note that I question the (non-)implementation of the law in order to underline the obscurities of the provisions, the falsification of political claims, and the ways in which it encouraged newer strategies. I put forward two arguments: first, that the MWA is a product of reductionist discourses and political symbolism, which has established MPL, a colonial law, as sacred inalienable legislation. This scenario has “de-stabilized” Muslim families in matters of divorce wherein the ideologically divided dominant political discourse shapes negotiations, navigation, and strategies rather than the need for gender justice. Second, the meanings of law are not “fixed.” The users of (formal and informal) law define its meanings and develop legal strategies. Thus, different legal forums, though effective sites of negotiation, may also be spaces of differences and contestation between users of law. This does not, however, restrict legal processes and struggles for change.
7Instant triple talaq is a form of verbal and irrevocable divorce that empowers a man to divorce his wife by pronouncing the word talaq three times, one after the other. The practice is called talaq-i-biddat (sinful/innovative form of divorce) in the Quran and is largely disapproved of by Muslim legal scholars throughout the world.3 However, it continues to be practiced in India due to the communal politics and cultural insecurities of Muslims as a minority. It is recognized as one of the several versions of divorce and is regarded as “legitimate” under Sunni-Hanafi traditions which are followed by most Indian Muslims.4 A survey-based study conducted by the Bharatiya Muslim Mahila—Andolan (BMMA), a Muslim women’s organization, found that the practice has become derogatory in the absence of any protective measures. BMMA’s report, No More Talaq, discussed 117 specific cases of women who had been divorced via instant triple talaq and suggested that in some cases, talaq had been pronounced (and duly certified by the ulema) by electronic means, by telephone, or via a mere SMS in their absence, leaving them abandoned and homeless. The practice is used by Muslim men as a religious weapon to subjugate women. Instant talaq is like a talwar (sword) held in front of the throats of women who are in an abusive marital relationship (Soman and Niaz BMMA 2017:25). In other situations, it is used as a weapon to control women’s bodies and choices. It is argued that the practice is not Islamic because a selective anti-women interpretation of the Quran is used by Muslim men and the ulema to legitimize several social-cultural issues such as dowry, infertility, illness, and so on as valid reasons for divorce. BMMA argues that over 92 percent of Muslim women in India reject the practice and call for banning it, along with other practices such as bigamy, child marriage, and nikah halala (temporary contractual marriage of the divorced wife, following which the divorced couple can remarry each other) by codifying MPL along the lines of Hindu Laws (27–28). The study triggered a nationwide debate on reform and initiated a comprehensive legislative step toward establishing a gender-just personal law.
8There is no reliable nationwide statistical data on the number of instances of instant divorce in the pre- and post-MWA period, and thus there is no way of assessing the “effectiveness” of the law using data.5 The article relies on the testimony of women who faced instant talaq, on formal and informal interviews and on discussions I conducted with Muslim women-led organizations and activists (often described as “Islamic feminists”), journalists, and on relevant newspaper reports.6 I conducted ten interviews with activists from different women’s organizations, two law practitioners who provide legislative support to these organizations, and eight interviews with women (mostly from Delhi) who somehow or other were personally concerned by the MWA, in order to understand how the law translates on the ground and how different organizations incorporate it in their struggle for legislative reforms. Most of these women belong to lower middle-class families and have completed a secondary school education. Some of them were divorced via different unilateral forms of talaq, including instant triple talaq, with no means of reconciliation. Some had to negotiate by giving up their right to initiate divorce, called khula (divorce initiated by the wife). This also includes the case of Benazir Heena (she willingly gave her name) who petitioned the Supreme Court (SC) in 2023 against all unilateral forms. Here, issues of socioeconomic marginalization or “positionality” become important for understanding how poverty, education, and employment determine how and to what extent Muslim women engage with legal processes and religious codes (Hasan and Menon 2004) and navigate formal and informal legal forums.
9Two important laws have been points of reference in the triple talaq debate: the MPL (Sharia) Application Act, 1937, and the Dissolution of Muslim Marriage Act, 1939. The Sharia Act deals with concerns related to marriage, succession, inheritance, and waqf charity among Muslims, while the 1939 law defines the circumstances under which Muslim women can obtain legal divorce, and secure rights as divorcees. It gives women the right to legal divorce on nine different grounds. Although these laws are often interpreted within the framework of minority rights (Art 25–30, right to religious freedom), their constitutional status is debatable. Article 13 of the Constitution makes a provision for judicial review and empowers the courts and the Indian State to declare a law/act void if it infringes the fundamental rights of individuals.7 Thus, MPL is also subject to judicial scrutiny and cannot be considered as an absolute legal doctrine or God’s law, contrary to the way it has been presented (Mahmood 1977, 1985; Banatwala 1985; Engineer 1999; Larson 2001; Subramanian 2008; Mahmood 2015; Subramanian 2017; Mahmood and Mahmood 2017; Saxena 2022a; Ahmed et al. (eds.) 2022).
10This ambiguity created a platform for highly politicized and intense debates on the status of family law, especially MPL, and the need for a UCC in post-independence/post-partitioned India. The definition of “uniformity”, however, found new meanings in the secular-nation-building project of Nehru in the 1950s to 1970s and the Hindutva homeland politics of the post-1980s. In 1956, the Nehru-led Congress government codified Hindu personal law under the much-debated Hindu Code Bill. But it assigned the responsibility of reforming family law to the respective communities, leaving the fate of Muslim women in the hands of community leaders and the ulema class. This scenario encouraged Muslim religious organizations, such as Jamat-e-Islami Hind (JIH) and Jamiat Ulema-e-Hind (JUH) and a powerful section of the Muslim political elite, to portray MPL as a religiously sacred and sociologically fixed entity, arguing that it is the uncritical adoption of Islamic Sharia law based on the Holy Quran, thus sidelining the emerging “pro-reform” group of Muslim intellectuals, activists, and politicians.8 Later, in 1973, during the Indira Gandhi-led congress regime, these religious organizations formed the All-India Muslim Personal Law Board (AIMPLB) for the “protection of Muslim personal laws,” which inevitably established MPL as a symbol of Muslim national identity and Islamic culture in India (Ahmed 2022; 121–23). However, Hindu nationalist organizations appropriated the UCC to supplant MPL which they characterized as a symbol of obscurantist and backward Islamic practices. Hindutva politics of the Hindu homeland proposed the UCC as a legislative tool for the Hinduization of religious minorities. This interesting binary between the Allah-protected MPL and the Hindu law-driven UCC determined the political debates of later years.
11This debate assumed radical overtones during the Shah Bano case controversy in 1985–86. In a landmark judgment, the Supreme Court (SC), evoking section 125 of the Criminal Procedure Code (CrPc), 1973, held that Shah Bano, a divorced Muslim woman, was entitled to receive maintenance beyond the period of iddat (three menstrual cycles/ninety days called the “cooling” or “waiting” period during which divorce can be revoked) (A.I.R 1985 S.C. 945).9 The court further recommended the introduction of a UCC for all citizens of the country. The AIMPLB and other Muslim religious organizations triggered nationwide agitation against the court’s ruling, seeking protection of MPL from any kind of intervention from the state or the courts. They demanded the exclusion of the Muslim community from section 125–28 of the CrPc, which empowers the magistrate to decide the monthly maintenance of the spouse, children, and other dependent family members; and the removal of the directive principle concerning the UCC. Consequently, the Rajiv Gandhi-led Congress government overturned the SC’s decision and passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. The new law restricted the husband’s accountability for paying maintenance to only the period of iddat. However, it allowed Muslim women to appeal to the court for further maintenance outside the realm of the family (Agnes 2001; Vatuk 2005; Bajpai 2011; Solanki 2011; Nath 2013).10
12Shah Bano’s case was a turning point in this debate. On the one hand, Hindutva groups projected the Act as an appeasement of the Muslim community by the Congress-led Indian state; MPL as a symbol of Muslim political separatism; and, precisely for that reason, the “uniformity of the legal code” pressed for the assimilation of religious minorities. The BJP, an emerging political force, made the UCC its fundamental political agenda for making a case for national unity and cultural integration (BJP Manifesto 1989 and 1998:361). On the other hand, this communal appropriation forced women’s organizations, which had been pursuing the demand for a uniform secular and democratic law, to refrain from seeking gender equality in the field of civil law. This change of position initiated a new, more nuanced debate on the idea of the UCC, especially after the 1990s (Shabodien 1995; Hasan 2010; Saxena 2022b; 252–55). Some feminist groups highlighted the need for a common, gender-just, and egalitarian civil code instead of a UCC. They argued that women must be recognized as equal citizens, their property rights must be given legal validity, and a broader legal sphere should be created for women to be able to negotiate with the state beyond personal law. The Domestic Violence Act (DVA) 2005 was one of the greatest achievements of the Indian feminist movement in this regard (Kishwar 1994; Menon 1998; Chaudhuri 1999; Seth 2005; Justin 2010; Narain 2010; Agnes and Ghosh 2012; Narain 2013; Menon 2014, 2016). This strategic ideological move was to keep the issue of gender justice out of the communal discourse and to protect the minority’s right to religious freedom. However, it reinforced the AIMIM’s claim about the sacred status of MPL in politics and in the cultural sphere. Some Muslim women’s organizations also emerged during that period to pursue internal reforms. These Muslim activist groups not only contributed significantly to the public debate on the UCC but also posed a serious challenge to the AIMPLB’s long-standing patriarchal interpretation of the Quran and Sharia (Bano 1995; Kirmani 2008; Razia 2009; Vatuk 2010; Suneetha 2012; Niaz and Soman 2015; Rasheed and Sharma 2016; Soman 2022). Saumya Saxena notes that while the reform of the personal laws of other religious communities had gone smoothly, in an environment of consensus and consultation with religious leaders and very rational gender-based parliamentary debates, MPL remained as is due to its symbolic political status (Saxena 2022a:250). As for the Congress-led secular discourse, the protection of MPL meant the protection of minority rights, while for the BJP-led Hindutva discourse, rejection of MPL meant the establishment of a Hindu homeland by the cultural assimilation of Muslims (Anand 2016).
13In 2016, Shayara Bano’s writ petition brought the “Muslim Women’s Quest for Equality” and rights back into the dominant sociopolitical discourse. Shayara Bano, who was divorced by instant triple talaq with no reconciliation process, challenged the instant unilateral talaq. She demanded that the MPL (Sharia) Application Act, 1937, and the Dissolution of Muslim Marriage Act, 1939, be declared unconstitutional (Shayara Bano v. Union of India and Ors, 2016).11 Evoking the Fundamental Rights granted under Articles 14, 15, 21, and 25 of the Constitution, the petition also insisted that the divorce deed issued by the husband be treated as “illegal” and “unconstitutional”, along with the practice of polygamy and nikah halala. Despite differences in their ideological positions, many women’s organizations joined the campaign and demanded that the practice be banned. In the meantime, on October 16, 2016, Hindutva groups also filed a Public Interest Litigation (PIL) which questioned the practice of marriage and divorce under MPL. The PIL argued that arbitrary divorce, polygamy, and nikah halala violate Muslim women’s dignity. At the same time, a BJP activist and SC lawyer, Ashwini Upadhyay, petitioned for the enactment of a UCC. The SC accepted both petitions and delivered a judgment on instant triple talaq in August 2017 (Saxena 2022a: 230–75). It described the practice as “manifestly arbitrary” and “un-Islamic,” and declared the pronouncement “invalid” and unconstitutional once again after having condemned it earlier in 2002 in the Samim Ara Case. Furthermore, the SC instructed the government to enact a law in this regard and declined the plea for a UCC. In the meantime, the Law Commission of India (LCI) also dismissed the need for a UCC, noting that it was “neither necessary nor desirable at this stage.” It suggested that gradual structural changes be made to family laws in general and to MPL in particular as the best way forward (2018:7).12
14Shortly after the Court’s verdict, on December 28, 2017 the BJP-led National Democratic Alliance tabled and passed the Muslim Women’s Protection of Rights on Marriage Bill, in the Lok Sabha (lower house) without having consulted women’s groups or legal experts. The Bill made the declaration of instant triple talaq an already invalidated practice by the court, a cognizable and non-bailable offense with three years’ imprisonment for the accused husband. Opposition parties and women’s organizations opposed the criminalization of a civil matter and demanded in-depth scrutiny of the bill by a Parliament select committee. This led to differences of opinion between women’s organizations over the issue of legislative reform under the Hindutva regime. Finally, in July 2019, after much anti-Islam propaganda and vilification of Muslim men and Islamic laws through national media in the wake of national elections, the government enacted the Muslim Women (Protection of Rights on Marriage) Act (MWA) modeled on the draft bill. The only change it made concerned the offense which went from non-bailable to compoundable (possibility of compromise at the behest of the complainant, the wife). The BJP claimed this move a historical victory that would “rescu[e] [our] Muslim sisters from a historical injustice inflicted upon them by Muslim men” (Agnes 2018; Saxena 2022a). This rhetoric was followed by a highly mediatized, communal, and deeply patriarchal political discourse (Parveen 2022). Thus, it is important to run a fact check on the alleged purpose of the law.
15The fact that the MWA introduced a civil matter in the field of criminal jurisdiction presents a very interesting case of the interpenetration of legal and normative orders as well as the multiple interpretations of these legal norms by users of the MWA. A cognizable offense comes under the category of serious crimes, such as murder, rape, theft, kidnapping, dowry death, and so on, under section 154 of the CrPC. In this sense, the pronouncement of talaq has been recorded under the category of serious crimes, which is highly problematic. The feminist scholar, legal expert, and activist, Flavia Agnes, has insightfully scrutinized the provisions and the anticipated negative outcomes of these provisions of the law for Muslim families (Agnes 2019:349). However, the law has produced very complex meanings of rights, retribution, and justice for those who engage with it. These meanings have been rendered more complicated in the highly polarized and vilified anti-Muslim/anti-Islam public political discourse. It is imperative to examine the way these negotiations were prompted in the ambit of the MWA and MPL and respective legal forums.
16Women who have interacted with the law explain the multifaceted aspects and complexities of accessing legal forums and institutions. Their accounts of interactions at the police station, the first point of contact, and their experience of the procedures in MWA cases demonstrate not only the obscurities inherent in the provisions of the law but also general institutional apathy toward such cases, all of which leads to question the purpose behind the BJP-led government’s claim.
17First, there is general bureaucratic unwillingness and a lack of information within enforcement agencies. Ritu Dubey, advocate on record at the Supreme Court of India, and president of a non-government organization (NGO) called Nyayabodh Foundation, said that no rules and regulations have been developed to explain the provisions and procedures of the law that could provide the necessary guidance for the police and judiciary. The NGO is working closely with Shaista Amber, founder of the All-India Muslim Women Personal Law Board (AIMWPLB) to offer legal support to women in these cases. Dubey indicated that the only procedure that helps to some extent is part of the judgment of the Shayara Bano case proceedings. However, it only invalidates the practice and does not refer to criminalization. Thus, there is some ambiguity and confusion regarding the procedures among police officials, law practitioners, and magistrates. Even women who wish to contact the police about instant divorce do not know which procedures to follow.13 Zakia Soman, co-founder of BMMA, confirmed that this is one reason why the law does not translate well on the ground.14
18This institutional apathy has raised the question of the accessibility of legal recourse to women in general and to Muslim women in particular. For instance, Farida (pseudonym), 25, who has two children aged five and three, was immediately driven out of her house after divorce. She had been a victim of domestic violence during her married life but had endured this suffering for six years because, for her own, her children’s, and her parent’s sake, she did not wish to end her marriage. She was threatened with talaq many times if she did not give in to her husband’s and in-laws’ will. She accepted humiliation and physical abuse as her destiny. However, according to Farida, when her husband pronounced talaq three times, she decided to fight back.
19Believing that the MWA would help revoke her marriage and punish her husband for the pain she had suffered, or at least help her endure divorce in a dignified and mutually acceptable manner, Farida contacted the local police station. The officer there refused to register a complaint, however, and asked her to present a witness to ensure that the incident of instant triple talaq had taken place.15 There is nothing in the MWA that stipulates a witness testimony. According to section 4, “Any Muslim husband who pronounces talaq … shall be punished with three years’ imprisonment” (MWA, 2019). However, in practice, no criminal case can be registered without evidence of the crime. Farida couldn’t produce a witness because talaq was pronounced in front of her in-laws at their residence, and they would never have testified against their son or brother. Thus, Farida had to register her case under the Domestic Violence Act (DVA) to get justice. Her case was registered in the Daily Diary and referred to the Mahila Panchayat, a local unit of the National Commission for Women (NCW) for arbitration. This was the trend in such cases (Ara 2019; Salam 2021) even before the MWA. Women simultaneously contacted dar-ul qazat centers and the National Commission for Women (NCW); this system has been defined as the “inter-legality” and “harmonization” of the Indian legal system whereby women navigate between formal and informal legal forums (Lemons 2010; Solanki 2011; Ghosh, Chakraverty and Rahman 2021).16 However, the MWA changed their understanding since the dar-ul qazat centers have no binding authority.
20The women’s commission made arrangements for three sittings with the couple in the hope of bringing about a reconciliation. However, the husband disappeared and did not respond due to the fear of imprisonment. The case is still pending. Farida has been living with her parents and has now given up all hope of obtaining her right to maintenance for herself and her underage children.17 The NCW official, who deals with the women’s helpline and contributes to processing complaints related to crimes against women, informed me that cases of triple talaq are processed under DVA or section 498(a) of the CrPC that deals with cruelty against married women. The NCW assists victims by directly involving the police authorities who carry out preliminary investigations and decide charges based on the available evidence of a crime.18 In cases of instant divorce, the only legally viable piece of evidence of an actual crime is the confession made by the accused himself. In this sense, the provisions of the law itself have rendered the MWA useless.
21Tanveer (aka Gudia Baji) is a social activist and local member appointed to the Municipal Council of Delhi. Tanveer has been working as a community consultant and has been offering counseling to the local thana (police station) on community-related issues. She helps women and community members in legal matters, and mediation or reconciliation in cases of domestic violence and divorce. According to her, the MWA gave some hope to victims of triple talaq. The number of women who contacted her after the enactment of the law increased dramatically. These women had been victims of domestic violence and were facing the threat of triple talaq. Despite Tanveer’s active involvement, very few first information reports (FIRs) were registered, and then only after much insistence with reference to the DVA. According to Tanveer, the police do not register a case against the husband even under normal circumstances and insist that the wife produces a witness. Thus, the police place an additional burden on the woman, for her to substantiate her complaint with proof of it. Instant triple talaq usually takes place when the husband and wife are engaged in a heated debate or both partners are angry. In these circumstances, other people, especially neighbors, choose not to get involved. Hence it is almost impossible for the victim to produce a witness.
22Tanveer further explained that the process has become more complicated with the ambient anti-Muslim sentiment, which has been normalized by TV debates. There is a general communal bias at play when it comes to attending matters related to complaints against polygamy and divorce. Women are driven away and advised to approach a qazi (Islamic scholar who performs nikah and mediates divorce) rather than the police. Even in cases that come under the MWA, the police are not interested in dealing with such cases and are reluctant to overburden themselves and the judiciary, which raises alarms regarding the purpose of the law.19 Zakia Soman also cited similar stories about the police’s attitude where they “are usually prejudiced against women who approach them in cases against their husbands and in-laws. In their eyes, she is already a culprit.”20 According to Tanveer, the best possible option for these women is to seek protection under the existing legal framework—the DVA and/or section 498 (a) of the CrPC—as discussed above, to obtain maintenance and childcare, and to ensure that the husband cooperates.21 This is an example of how women negotiate and navigate their rights between different legal forums.
23The second issue that emerged from the discussion is that their marital status is unclear. Triple talaq is still considered an Islamic practice. The ulema’s stance against legislative intervention in the debate on reforms has created a dilemma about the “legal” and “religious” status of the practice. It means that women find themselves embroiled in a serious problem where they are divorced in religious terms but still legally married. Khalida Parveen, social activist and head of a local NGO called Amanat Society in Hyderabad, and Asma Zehra, a female member of AIMPLB, provided information about this dilemma. The two organizations are against any sort of state intervention and, for that matter, oppose any amendment to MPL, describing the latter as an “Islamic ecosystem.” They argue that, while the MWA has not helped Muslim women in any way, it has created a safety zone for men. Those who used to threaten their wives with triple talaq have discovered in the MWA a new tool for establishing supremacy over women in order to punish them. Zehra insists that one has to differentiate between social evil and religious practice. However, it is not clear where the line is drawn.22 Victims’ testimonies reveal that the emotional, psychological, and physical torture of Muslim women at the hands of abusive husbands is on the increase because they are either forced to live in the same house under terms dictated by their husbands and in-laws, or leave the house with no clear marital status. The following case attests to this. Nafeesa (pseudonym), aged 23 from Delhi, informed us that two years ago she had had to leave her house and move to her father’s place after continuous physical and mental torture. Her husband stopped all communication with her and abandoned her, saying, “You will drag me to the police station if I divorce you. So, since you’ve left the house, you can remain the same way at your father’s house or opt for khula.”23
24Shaheen Women’s Resource and Welfare Association (known as Shaheen) situated in Hyderabad, which has been working for years for the empowerment of women, conducts monthly and quarterly family surveys during the mass contact programs in the city’s slum areas. In their surveys conducted in the post-MWA phase, Shaheen found that, of the 2,106 households surveyed, 683 of them contained women who now face desertion, which came as a big surprise. In a personal communication, Jameela Nishat, the founding member of Shaheen, said: “Earlier, we used to get cases of triple talaq and a few cases of separation but, with the introduction of the law, the number of cases of desertion has suddenly gone up, while there are no longer cases of triple talaq.”24 She explained that the “criminalization aspect of the MWA was emphasized rather than preservation of the ‘sanctity’ of the marital relationship, which should end in a dignified manner; and that men, especially those belonging to lower classes, with a poor standard of education, including regular rikshaw drivers, daily wage workers and so on, realized that they could be imprisoned if they pronounced instant triple talaq or even encouraged any other form of Islamic divorce. As a result, actual cases of triple talaq are certainly on the decline but it is not because of the change in attitude. Husbands have started deserting their wives rather than ending the marital relation with mutual consent in a dignified way or performing reasonable obligations.” (translated by the author)25
25The Shaheen study also found that abusive husbands either disappear or cease any contact with their wives after abandoning them so that they don’t have to cover the latter’s living costs. According to Jameela, “The number of single married Muslim women is increasing… This is exactly how it happened with Hindu women after the DVA was passed, even among young married women who faced desertion and were bound to remain single unless their current marriage was terminated.”26 It also found that cases of polygamy, which was a problem and though minimal in terms of numbers, had also increased even earlier among these social categories. According to Nishat, men belonging to lower classes were using instant triple talaq as an easy way to end one relationship and move onto another since it was a financial liability to maintain two families simultaneously. Since the MWA has been passed, they have found abandonment to be a more convenient way to keep two wives while avoiding all financial responsibilities. Gulafshan (pseudonym), aged 26 from Delhi, tells the same story. She has to hold down two jobs, one as a housemaid and another as an assistant in a shop that sells mobile phones, after her husband remarried and abandoned her. He left her with one of her two children with no maintenance or childcare. She is now fighting a domestic violence case against him to secure her child’s rights.27
26Personal law is a contested domain because the codes of law are not “fixed” in terms of meaning-making. The interaction between the MWA and MPL has produced new meanings of rights and justice. The fear of imprisonment has prompted Muslim husbands in a troubled relationship to encourage the use of alternative means available to Muslim wives in the framework of MPL. It has resulted in blatantly stripping women of their Islamic rights. One of the alternative forms is khula. My fieldwork reveals that while the number of instances of triple talaq have declined, the number of cases of khula have dramatically increased over the last four years (2019–the present).
27Khul or khula (women’s unitary right to divorce) is one of the three forms of divorce that a woman can initiate (khul, khula, mubarat, and faskh-i-nikah) on “valid” grounds in exchange for payment (Fyzee 1974). The Dissolution of Muslim Marriage Act of 1939 also granted Muslim women the right to initiate divorce through a court of law to end an abusive relationship. Only recently, in 2021, did Kerala High Court grant women the right to khula through extra-judicial means (Salam 2021). It empowered dar-ul qazat centers to help women to negotiate their rights and to issue khulanama—certificate of talaq by khula (Lemons 2018:603–629). This has the effect of bringing about instant and irrevocable divorce if both parties agree. There is considerable disagreement among ulamas about whether it is consensual or not; However, what is important in our case is the issue of compensation, which is equally debatable (Vatuk 2019).28 In the case of khula, the wife offers her husband compensation in exchange for his releasing her from the marriage; The marriage is thus terminated at her behest. As compensation, according to some ulemas, she has to forgo her rights to maintenance for the period of iddat even if mahr (dower) has already been paid. This also includes property and jewelry. Note that section 5 of the Dissolution of Muslim Marriage Act, 1939, clearly explains that women’s “right to dower (mahr) is not to be affected” in such cases (DMMA, 1939). Scholars of Islamic law (the ulama) also explain that the Quran instructs men to be generous and to not take back any gifts—once the marriage has been terminated—which they may have given in happier times, , whatever the type of divorce (Salam 2018:72–73). But contrary to what the law and the Quran say, some qazis even insist that the woman pay the husband an amount in lieu of khula since the divorce was pronounced at her behest. They call it khula badle mal (khula in return for wealth) (Mustafa 2022). Interestingly enough, while different dar-ul qazat centers impose their own interpretations, Maulana Ateeq Ahmed Bastavi of the AIMPLB said in a television interview that there is no provision for such compensation in Islamic law or the sharia).29 This shows the contradictions and the various interpretations of sharia law. There is some abuse of this practice. The ulema cannot help women since it is not his role to determine whether a woman “wishes” to perform khula or whether she is “forced” to do so. But they can help women to negotiate better. According to Soman and Amber, these centers are dominated by men who adhere to a patriarchal interpretation and to established social norms when taking decisions. For instance, payment of mahr is obligatory for husbands and is to be done at the time of marriage or immediately after that. There is a general impression that this was created as compensation for divorce. Thus, a married woman is not supposed to demand mahr unless it is for divorce. And, if she initiates khula, she has to give up this right. It is the responsibility of qazis to ensure that this does not happen. However, the lack of sensitivity to gender issues and of female clerics has allowed these interpretations to prevail.
28Many Muslim religious organizations that deal with matters related to MPL, including marriage and divorce, have revealed that the number of cases of couples seeking divorce via khula and talaq-i-hasan has increased in comparison to other forms of divorce in Delhi, Uttar Pradesh, Bihar, Maharashtra, and Telangana (Mustafa 2022). According to the dar-ul Qqazat, Waqf Board, Telangana, the number of cases of khula has risen significantly in Hyderabad over the last ten years. Women here performed khula to end an unhappy marriage even before the enactment of the MWA because they are more educated and independent than women in north Indian states (Moin 2020). However, the situation changed for some women after the enactment of the MWA. At first glance, the larger number of khula cases shows better awareness and determined resistance by educated Muslim women. While this is true in many cases, the practice is often currently exploited. Contrary to the above-mentioned media reports and the intended use of this right according to the sharia, not all women demand khula willingly or easily at dar-ul qazat centers. This practice is used to punish women.
29In many cases, husbands force women to initiate khula instead of initiating divorce themselves. This is a useful way for them to avoid all kinds of financial responsibilities and blame for terminating the marriage (Farooquee, 2022). Khalida Parveen agreed that, since the enactment of the MWA, husbands and their families prefer khula. Zakia Soman explained that in some cases, husbands are known to have even demanded in return an additional cash payment or property from the woman’s family.30 Moreover, Tanveer informed me that in many such cases, men also force their wives to give them a written statement to ensure that their wives will not file a legal case against them.31 Nafeesa, previously mentioned, also confirms this. She was pressured into pronouncing khula after she left her marital home. She was told to leave behind the jewelry that had been gifted to her as part of her mahr and to draft an affidavit to ensure that she would not register a legal case against her husband. Nafeesa initially refused to comply with these demands. Her argument was simple: since she was not the one who had ruined the relationship and abused her husband, why should she be blamed for ending the marriage? However, due to constant mental pressure and aguish she eventually had to compromise and consider it in order to move on.32
30The arbitrary use of other forms of divorce such as talaq-i-hasan and talaq-i-ahsan is another example of these strategies. The two forms are commonly used and considered more dignified by Sunni and Shia Muslims alike. Both talaq-i-hasan and talaq-i-ahsan give Muslim men the unilateral and unqualified right to initiate/pronounce divorce over a period of three months, known as iddat, in the presence of their wife and other witnesses by saying, “I divorce you.” In such cases, divorce can be revoked when it is pronounced for the third time. It allows a process of reconciliation between them with the help of close relatives and community members. In both cases, talaq is validated or invalidated according to the husband’s decision, with the subsequent settlement of maintenance and custody of children and childcare expenses (Salam 2018:23–27).
31Several petitions have been filed at different courts by women in order to counter all unilateral extra-judicial forms of divorce and polygamy. Benazir Heena and Nazreen Nisha filed separate petitions at the SC, in May and June 2022 respectively, to “direct and declare the Section (2) of … Sharia Act, 1937 and the … Act, 1939, void and unconstitutional for being violative of Articles 14, 15, 21, and 25 in so far as it fails to secure for Muslim women the protection from Talaq-i-Hasan and other forms of unilateral extra-judicial talaq" (Heena v. Union of India & Ors; PTI, 2022).
32Similarly, Reshma appealed to Delhi High Court with two simultaneous petitions against Islamic divorce and polygamy. Her appeal reads, “Bigamy or polygamy contracted by a Muslim husband without obtaining the prior written consent of his wife (wives) and without making prior arrangements of accommodation, maintenance … is unconstitutional, anti-sharia … and barbaric … and needs to be regulated” (ENS 2022). The plea, given that polygamy is acceptable under special circumstances according to Islamic law, calls for making it mandatory for a husband to seek prior permission from a judicial officer “in the form of a certificate” to prove that he is capable of “providing equal treatment to all wives,” including financial well-being and property. These petitions have prayed for providing direction to the Central government to define guidelines for gender-neutral, religious-neutral uniform grounds and procedure of divorce for all (ENS 2022).33
33In October 2022, the AIMWPLB and Nyayabodh Foundation filed a joint petition to the SC on behalf of women victims of divorce, seeking “direction from the SC to effectively implement the Triple Talaq Law” and to declare “divorce given to Muslim women without following the due procedure of arbitration and conciliation in the presence of a witness null and void retrospectively” (ANI 2022). The petition sought to declare all unilateral extra-judicial forms of divorce an evil curse and to issue directions and guidelines to all respondents regarding the economic and social scrutiny of divorced women and their children because they are deprived of their fundamental rights (food, health, education, shelter, and dignity.34
34Interestingly, on the other hand, the definition of “victim” and “abuse” has also found new meanings while the social structures are already patriarchal. The MWA is seen as “pro-women” legislation while abusive men are projected as its victims by religious organizations. Three Muslim religious organizations have filed separate PILs to the SC, challenging the constitutional validity of Tripple Talaq Law. These include Jamiat Ulema -i- Hind (JUH), a group of Islamic Deobandi scholars (JUH and ANR, Writ Petition (civil) No. 1083 of 2019); Samastha Kerala Jamiathul Ulema (SKJU), a scholarly organization in Kerala (SKJU and Ors v. Union of India, Writ Petition (Civil) No. 994 of 2019), and; Mr. A.R. Madani, president of the Rashtriya Ulama Council, Amir Rashid Madani v. Union of India (Writ Petition (Civil) No, 993 of 2019).Broadly speaking, these petitions plead to declare MWA unconstitutional and in violation of fundamental rights to religious freedom and of the fundamental rights of Muslim men. This has led to a legal battle between women opposing discriminatory practices and Muslim religious organizations. Organizations such as the JUM, AIMPLB, and others are actively extending their support to offer legal help to male victims of the MWA. And there has been flourishing growth of unknown institutions and influential individuals that provide legal advice to husbands to ensure that no such cases of abuse are registered or attended to. Hasina Khan, founder of the Bebaak Collective, informed us that this is almost exactly on the lines of many “Pati Bachao Sansthaein” (Save-Husband Organizations) which emerged in the wake of the Dowry Abolition Act, 1961 and later after the DVA, 2005.35 These organizations justify their stand for the sake of protecting MPL or simply maintaining the status quo.36 The aim is to find a convenient way to avoid imprisonment by all means.37 Tanveer, who has been working in the community for almost twenty years now, explained that the MWA has intensified this kind of protective mechanism rather than the possibilities of finding a compromise, which was previously the case. She estimates that the DVA has not proven very helpful in this respect. Even in cases where women can win the case and obtain maintenance, they are not encouraged in this endeavor due to corruption that is rife in the enforcement agencies. Thus, MWA has merely become a tool to punish women who have dared to stand up against patriarchal structures.38 Broadly speaking, it is a reaction against women who approached the BJP to appeal against MPL and the authority of religious organizations. Moreover, it has put a burden on Muslim women to prove their community identity by rejecting what is granted to them as a token of justice under MWA or to accept what has been portrayed as “Islamic right” under the MPL.
35The discussion highlights the multiple implications of a complicated and highly obscure law that emerged from a reductionist ideological divide and political symbolism. Hindutva’s Islamophobic stance has manipulated Muslim women in their call for reform in order to re-enforce its image as a “savior” of Muslim sisters. In reality, the law, which was given an enthusiastic reception as a mechanism against a historical and intrinsic Islamic practice of instant triple talaq, does not even declare it a legally recognizable “crime” against Muslim women, which it claimed to do. On the other hand, the dominant secular political discourse has inevitably re-established MPL, a colonial law, as sacred and fixed legislation, which is further enforced as an “Islamic ecosystem,” and, more importantly, as an intrinsic symbol of Indian Muslim identity. This largely masculine image of community identity has not only contributed to the everyday struggles of Muslim women in matters of divorce but has also restricted the systemic, creative, and analytical contribution to debates on legislative reform. Consequently, while personal law of other religious minorities, such as Christians, Parsis, and so on, has undergone systemic and smooth changes, as discussed by Saumya Saxena (2022), MPL status is still contested—a punching bag for and against a highly vague notion of UCC.
36The increasing number of PILs filed at different courts by Muslim women-led organizations and Muslim religious organizations presents a very complex scenario. First, broadly speaking, it shows that the dominant political discourse and the MWA have placed Muslim men and women in binary opposition to each other, not merely as a disputing couple but also as bearers of dominant narratives. In this sense, the law has “de-stabilized” concerned Muslim families in matters of divorce where ideologically divided political discourses—not ideals of gender justice—shape the negotiations, navigations, and strategies. These families negotiate the legal resources available to them in order to assert and live their discursively constituted identity as Muslim Indian citizens. Second, the MWA explains that the site of lawmaking and adjudication is a contested terrain. Law users draw up their own meanings of the law, translating and negotiating it differently and navigating strategically on different legal forums. Thus, the potential of law to encourage disputes as well as to resolve them needs to be engaged creatively within debates on legislative reforms of MPL.