Women challenge India’s Islamic law

NEW DELHI — In India’s Islamic family law codes, a man can divorce his wife via e-mail, or from another city without her knowledge. By simply saying “talaq” (the Arabic word for divorce) three times, he can end his marriage in seconds and kick his wife out the same day.

Being so simple, divorce can happen accidentally, as in Aftab Ansari’s case. After a nasty marital fight, Mr. Ansari unknowingly muttered the word three times in his sleep. A waking nightmare followed.

His wife, Sohela, heard what was said. Knowing that he hadn’t actually divorced her but upset nonetheless, she told a friend about it the next day. People in their village gossiped about it, and the matter soon reached local Islamic religious leaders. They decreed that divorce had taken place and tried to separate the couple by force, even though both husband and wife wished to remain together. When the couple defied the ruling, they were threatened.

The case is an extreme example of the tension building in India’s pluralistic democracy over a delicate issue: Where does religious freedom end and the rule of law begin?

Having given Muslims the right to follow their own religious laws in the Shariat Application Act of 1937 (including polygamy and triple talaq), India’s courts are now rethinking this delegation of authority. Meanwhile, among India’s Muslims, women are becoming educated and starting to demand their rights from a grudging religious establishment.

Last year, the Supreme Court of India ordered that the Islamic court system, known as Dar-ul Qazas, be examined and possibly dismantled in response to a public-interest lawsuit claiming that the religious courts are subverting the judicial system.

The complaint and continuing inquiry began after a ruling by a village-based Islamic court in a rape case caused a national furor. The court ruled that a woman raped by her father-in-law had effectively divorced her husband by having relations with another man, and must marry the rapist. The most powerful Islamic law organization in the country, the All India Muslim Personal Law Board (AIMPLB), supported the decision and even alleged that the woman lied about being raped.

Islamic courts cheap

The AIMPLB has no legal standing and is simply supposed to advise people on Koranic law. In practice, though, because it runs most of the Islamic courts, its decisions are highly influential. Hiring lawyers and waiting years for a case to be heard is often out the question for poor Muslims, and the Islamic courts are a cheap, fast option.

In poor or remote communities, there are no courts at all, and the local cleric or village council — knowledgeable or not of the constitution or Koran — serves as judge and jury. The state and its systems are so distant from these villagers that verdicts announced in the local mosque must be followed.

Such was the Ansari case. Not accepting the judgment and fearing the wrath of religious leaders and their fellow villagers, they had their marriage registered in court.

India is the only country in the world where triple talaq divorce is legal; even stricter Islamic countries have abolished it. The Koran specifies that a waiting period of one month is required between each utterance of “talaq” — allowing tempers to cool and consequences to be considered.

It was in the 1800s that a British colonial court allowed a triple talaq all at once without the wife being present. The ruling somehow stuck even after India’s independence in 1947.

“This has become the tradition. Yet how much did the [colonial] council understand Islamic law?” asked Bombay High Court advocate Nilofar Akhtar, who specializes in family law.

Islamic marriage is solemnized with the signing of a “nikahnama,” a marriage contract prescribed in the Koran.

Story Continues →