Why does it matter that India criminalised the Islamic instant divorce?
The legislation passed by the Indian Parliament, on Tuesday 30 July 2019, should start the important discussion about the difficulties faced by Muslim women during the Islamic divorce process and why such drastic legislation was passed by a country which is populated by 180 million Muslims.
Under Islamic law, a Muslim man has the ability to divorce his wife (whereas the wife has no such reciprocal ability unless specified in the marriage contract) by pronouncing the word “talaq” (Arabic for “divorce”) three times. Keeping aside the other requirements, the important aspect of this right of a Muslim man is that he can choose to divorce his wife verbally. The divorce is not required to be registered with any organisation or agency and there is no requirement for it to be in writing – which means that a verbal divorce is sufficient to end a marriage. This triggers some potentially adverse consequences. An important consequence is that if divorced, a woman is then able to remarry after she completes the period of Iddat or Iddah – a period of time that a woman must observe before she can remarry.
The difficulty that some women face is that her former husband may deny that he ever pronounced the verbal divorce. Given that there is no requirement for it to be in writing, it becomes a matter of great concern for the woman because if she wasn’t divorced and remarried, her subsequent marriage would be null and void thereby causing her to believe that she was not only living with a man who she is not married to but may also have committed a criminal offence.
The neighbouring country, Pakistan – which has 96% Muslim population – has dealt with this issue by making it a legal obligation on the husband who pronounces divorce to send a notice to the local council via registered post to request the council to issue Divorce Certificates to both parties. If a husband fails to send this Notice after pronouncing divorce, he may face the possibility of imprisonment for up to one year or a fine (or both). This allows the religious right to continue but ensures that it is the responsibility of the man to ensure that the divorce is registered after it has been pronounced.
Similarly, Indonesia – a country with the biggest Muslim population – requires parties seeking a divorce to approach a Court rather than giving the man the power to end the marriage.
Indian constitution recognises and allows its minorities to follow the laws of their own faith in relation to divorce however, Australia follows a uniform civil law and applies it to all its citizens. But faith-based divorces such as talaq and gett have immense psychological consequences on the lives of people who follow these faiths. Therefore, a continuous discussion of such issues allows the society to implement solutions.
Naveed Khan, Solicitor | Berger Kordos Lawyers