Here are Reasons to Abolish Triple Talaq (UCC is Not One of Them)

The triple talaq system treats women unequally. (Photo: iStock)

(In a landmark judgement, a Constitution Bench of the Supreme Court, on 22 August, declared the practice of Triple Talaq unconstitutional. A five-judge bench of Chief Justice of India JS Khehar, Kurian Joseph, Rohinton Fali Norman, Uday Umesh Lalit and Abdul Nazeer struck down the practice on the grounds that it goes against the Shariat and the basic tenets of the Quran. In light of the judgement, The Quint is reposting this article that was first published on 10 May 2017.)

Come 11 May 2017, the Supreme Court will hear Shayara Bano’s case which challenges the constitutional validity of Triple Talaq, Nikah Halala and polygamy within Muslim Personal Laws.

Are divorce rates higher among Muslim women than among men? And does it differ between women of different religions? The answer to both is yes. My analysis using the 2011 Census indicates that Muslim women’s divorce rate (rate of divorce is calculated as a percentage of the married population for that category) is 3.53 in contrast to 1.96 for women of all religions. Also, there are 3.7 Muslim women (2,12,074) for 1 Muslim man (57,535) who reported being divorced in the 2011 Census.

In a perfect world where both have equal rights to divorce and equal opportunities to remarry, the male-female ratio should be close to 1. For Hindus too, it is sub-optimal – for every divorced Hindu man (344281) there are 1.8 Hindu divorced women (618529).

Rewind 32 years – on 23 April 1985, the Supreme Court passed its verdict on the Shah Bano Case, which caused a furore in the Rajiv Gandhi government leading to the cancellation of Shah Bano’s monthly maintenance allowance of Rs.179.20, measly even by 1985 standards.

Like Shah Bano, Shayara Bano has been married for most of her adult life. At 35 she finds herself cast away through the auspices of Triple Talaq with the possibility of spending the majority of her life in penury after bearing her husband two children and going through multiple abortions. While the marital violence she endured is not unique to her or to Muslim women, but Triple Talaq without maintenance beyond 90 days post-divorce (the period of Iddat in Muslim Personal Law) is.

Could Triple Talaq contribute to greater rates of divorce among Muslim women?

Maybe. Analysis for 5 states where the share of Muslims in the population is higher than the Indian average of 14%, indicates that Muslim women’s divorce rate outstrips those of women from all religions by a wide margin, other than in J and K.

Figure 1. (Photo Courtesy: Sreeparna Chattopadhyay)

Uttar Pradesh, Jharkhand and Bihar have higher divorce rates among Muslims than among Hindus (Table 1) – surprising since these states also overall have the lowest divorce rates, while J and K, West Bengal and Kerala overall have some of the highest marital dissolution rates. While couples may divorce for different reasons, divorce initiated by husbands and/or in-laws are typically rooted in the absence of sons or of children, wives’ ill-health or infidelity (either party). Some studies suggest that in India divorce is more common in households with lower rates of education and incomes.

Table 1: Divorced percentages across key Indian states. (Photo Courtesy: Sreeparna Chattopadhyay)

While gender differentials in separation rates are insignificant, such stark gender disparities in divorce rates indicate that either divorced Muslim women are less likely to want to marry, or do not find willing partners to marry. It is reasonable to assume that divorce initiated by men should not differ based on religion; therefore, it is plausible that an unilateral right to divorce under Triple Talaq has definite gender disadvantages.

Figure 2. (Photo Courtesy: Sreeparna Chattopadhyay)

Figure 2 presents an interesting paradox – West Bengal, Kerala and Assam with better gender equality indicators like higher female literacy rates, less skewed sex ratios, less entrenched patriarchy, also have smaller differences in divorce rates among Hindu and Muslim women. In contrast, in Bihar, Jharkhand and UP where women’s lives are characterised by extensive gender inequities, divorce rates are significantly higher among Muslim women, than among Hindu women. This suggests that a husband’s unilateral right to divorce may be leading to more divorced wives, in a regime of more intense patriarchy – particularly in states with some of the lowest divorce rates.

Overall, female disadvantage in divorce is high in India – there are twice as many divorced women (9,09,573) as men (4,52,743) comprising 0.24% of the married population. This is surprising but consistent with our understanding of gender and agency in India; while the law guarantees several freedoms, in a deeply patriarchal society, for female divorcees, the chances of remarriage are slim at best.

Unsurprisingly, religion doesn’t matter greatly if you are a man, either for remarriage post-divorce or not being divorced at all – with similar rates for Hindu and Muslim men.

Is divorce a bad outcome for Indian women and particularly for Indian Muslim women?

Not necessarily, if women choose to end marriages that are abusive and/or unhappy. However, for divorce to have similar outcomes for men and women, both must have equal opportunities for quality education and institutions that support dignified and sustainable employment. This is simply not the case.

Evidence from the Global North where women’s employment rates are higher and financial dependence on husband is lower, suggest that there too, on divorce, women’s financial well-being decline substantially. In India, a 2014 survey of 405 women across several metropolitan areas found that after separation, 41.5% of the women had no income and 27.5% earned under Rs 2000 per month and the majority lived with their natal family. The average gender pay gap in India is 30% and the majority of women, if employed, are in poorly paid informal sector jobs. Many women stop working after childbirth or due to relocation through marriage, which heightens their financial dependence on husbands, exacerbating their vulnerabilities.

Thus, unilateral divorce by husbands is a form of abandonment.

Should Triple Talaq be abolished?

Yes and here are a few good reasons (and UCC is not one of them).

1. Firstly, the excess of divorced Muslim women indicate that despite fewer stigmas around remarriage (unlike Hindus, Muslims were not averse to widow remarriage), they outstrip the numbers of Muslim divorced men.
2. Secondly, Muslim women are more likely to live in poverty and have lower work participation in formal sectors; therefore, if divorced and without maintenance, many would be pushed into acute poverty.
3. Thirdly, the requirements for remarriage with the same husband if Triple Talaq is a mistake are too humiliating for women to exercise this option.
4. Finally, neither partner should have the unilateral right to divorce.

Feminists, especially Muslim feminists have campaigned for years to reform Muslim personal laws, including abolishing Triple Talaq. The Hindu Marriage Act of 1956 ostensibly gave Hindu, Buddhist, Sikh, Parsi and Jain women greater legal protections. However, it is not radically feminist and maintenance is problematic for non-Muslim women too.

In conclusion, the gender disparities in Muslim divorce rates is a more compelling argument for the abolishment of Triple Talaq, than the differences between Muslim and Hindu women. The Supreme Court when hearing this matter, should consider this and the position of the Bharatiya Muslim Mahila Andolan with its one lakh registered supporters for Shayara Bano, while taking its decision.

(Sreeparna Chattopadhyay is a Faculty member in the School of Advanced Studies and Research at the Srishti Institute of Art, Design and Technology at Bangalore. She has been trained in gender studies, health, demography, and cultural anthropology from Brown University. This is an opinion piece and the views expressed above are the author's own. The Quint neither endorses nor is responsible for the same.)