Conjugal Justice

WHEN NAZREEN NISHA agreed to return to her parent’s home after she contracted tu­berculosis, it was the start of her marriage’s decline.

She had only been married for a few months to a well-to-do Muslim family in Nashik, and although her husband appeared nice, Nisha says, his parents were demanding and often quick to anger. “When I contracted tuberculosis, the pandemic was still ongoing, and my in-laws put fear into me saying that I would pass on the illness to them and my husband,” she says. Although Nisha had already been made to stay alone on an entire floor in the three-storied building, her in-laws, she says, got her parents to take her away to their home in Mumbai. “They told me I could come back once I had recovered,” she says.

This was in June 2020. Over the next two years, Nisha, who had fully recovered from the illness, and her parents would often request her husband’s family to take her back, both over the phone and on vis­its to their house, but her husband’s fam­ily kept declining.

In July, earlier this year, her mobile phone lit up with an SMS. It was a mes­sage from her husband declaring talaq twice. The husband and his family dodged all calls from Nisha’s family. But a month later, a third and final talaq was delivered in another message from an unknown number.

“What kind of talaq is this and why should I accept it?” Nisha asks in tears to­day. “The triple talaq ban was supposed to make divorces like this illegal, but I was served one not very different.”

Nisha’s husband had not attempted to divorce her under the now-banned talaq-e-biddat or instant triple talaq, where a Muslim husband could divorce his wife by uttering the word “talaq” thrice, but under talaq-e-hasan, where the husband can divorce his wife by uttering “talaq” once a month over 90 days.

Five years since instant triple talaq was declared unconstitu­tional by the Supreme Court and three years since Parliament criminalised it, a number of Muslim women are now demanding the dissolution of other such customs of marriage and divorce in Muslim personal law that are discriminatory towards them. While some like Nisha have approached the Supreme Court with public interest litigations (PILs) asking for the dissolution of customs like talaq-e-hasan which allow husbands to unilaterally divorce their wives, a clutch of other petitions seek to do away with practices like polygamy and nikah halala, or the practice of allowing a woman to remarry her husband only after she has married another individual, consummated it and then got a divorce from him.

While the now-banned instant triple talaq did not have any basis in the Quran, something the Supreme Court bench that disallowed this practice referred to in 2017, practices such as talaq-e-hasan and talaq-e-ahsan do, points out Syed Rizwan Ahmed, a lawyer based in Lucknow who is also familiar with Islamic law. They are also quite different. In instant triple talaq, a man could pronounce divorce at one-go. It had no scope for reconciliation between the feuding couple and ended a marriage instantly. But in talaq-e-hasan and talaq-e-ahsan, Ahmed points out that waiting periods are prescribed during which the couple continues living in the same house and attempts at mediation and reconciliation are expected to be made.

“In talaq-e-ahsan, when a husband first utters talaq, there has to be a waiting period, called iddah, of three months. It is like a cool­ing-off period. During this period, there have to be attempts made at mediation. If no reconciliation happens, then at the end of three months, the marriage stands dissolved,” he says. In the case of talaq-e-hasan, he ex­plains, the talaq is pronounced once every month over three menstrual cycles. Here, too, during this period, there has to be an attempt at mediation.

“But what is happening right now is that men are just cherry-picking what suits them. And using the procedures almost like they used [instant] triple talaq, without any attempt at mediation,” he says.

Jameela Nishat, the founder of the Hyderabad-based Shaheen Women’s Re­source and Welfare Association, points out that in many cases, men are using these customary practices to get around the ban on instant triple talaq. “It has be­come essential that all these customary practices are done away with. Otherwise, the ban becomes futile,” Nishat says.

Earlier this year, Benazir Hina, who has a one-year-old son, was served talaq thrice over three months under the talaq-e-hasan process. Con­veyed through notices sent on the phone, not only were no at­tempts at reconciliation made, Hina says, but her husband, who is a practising lawyer, had dodged all of her attempts at meeting or talking. “I’ve just refused to accept this as a divorce,” she says. “He has used this backdoor process because he does not want to give any alimony or be responsible for our child.”

Hina works as a television journalist in New Delhi. She had first met her husband, a lawyer, through a mutual acquaintance and married him in 2020. After her marriage, she realised her husband was uncaring and unsupportive. When she became pregnant and fell ill, her parents had to take her to the hospital and care for her, she says. He was also manipulative, according to her. “He would [sur­reptitiously] record my conversations about my parents or friends and colleagues, and later when we fought, send it online to them,” she says. “I realised later that he was doing this to alienate me.”

Hina, like Nisha, has approached the Supreme Court seeking to make the practice of talaq-e-hasan unconstitutional. She had filed this petition after she received her first talaq in May but the court, after initially declining an urgent hearing, has now begun to hear it.

In the recent hearing of her case, the Supreme Court held that its primary focus is to provide relief before deciding on the consti­tutional validity of this form of divorce. “Prima facie, this [talaq-e-hasan] is not so improper. Women also have an option. Khula is there,” media reports quoted the court as observing.

According to several activists, while the concept of khula does allow women to initiate a marriage’s annulment, in practice, women are not granted such a divorce without their husbands’ consent. “The qazis [Islamic judges] won’t give such a divorce without the husband’s consent. And often, men use this to get a better deal, like by not having to pay any financial support or taking full custody of their children,” says Zakia Soman, the co-founder of the Bharatiya Muslim Mahila Andolan (BMMA), an advocacy group that campaigns for female rights within the Muslim community, and which was one of the petitioners in the Supreme Court case that eventually led to the ban on instant triple talaq. Nishat points out that sometimes men arm-twist their wives into initiating khulas to get around the ban on instant triple talaq.

A number of petitioners are seeking to do away with other practices like polyga­my and nikah halala among Muslims. The practice of nikah halala, Soman points out, isn’t as widely prevalent as it is sometimes claimed. It does exist, she says, and she has come across a few cases herself. But these appear to be cases where the men use the cover of a sanctioned practice to exploit their wives into doing sex work.

Prior to its ban, the issue of instant tri­ple talaq used to make for a majority of cases that came up before an organisation like BMMA that concerns itself with the welfare of Muslim women. “Now, we hardly get any [instant] triple talaq case,” Soman says. According to activists like her, the larger de­bate on its ban has ensured that there is a lot of awareness among Muslims that this is now illegal and can attract imprisonment.

Nishat says it has led to an increase in desertions. Many wom­en, she says, are now simply being abandoned. “We have not been able to do a proper survey because of the pandemic. But we have definitely noticed a rise in this,” she says.

Nishat noticed the increase in desertions when volunteers from the Shaheen Women’s Resource and Welfare Association began to visit homes in Muslim localities in Hyderabad to conduct relief work during the lockdown. “In 2019, during one of our informal surveys, we found about four cases out of 579 households where husbands had abandoned their wives. Earlier this year, in one such survey, we found 236 such cases out of 800 households in the same area,” she says. “It’s horrible because in these cases, the woman isn’t even being divorced. She’s just being deserted.”

Benazeer Patil, a software engineer currently based in Pune, has also been seeking a resolution after her husband unilaterally initiated a divorce under the talaq-e-ahsan procedure through a notice couriered by Speed Post. “I was so shocked,” she says. “I knew [instant] triple talaq had been banned, but I didn’t even know such a process existed.”

Patil got married two years ago to another software engineer she had met through a marriage bureau. She had expressly laid down the condition that she would continue pursuing her career after her marriage, she says, but after three months of her mar­riage, her husband’s family would constantly harass her and push her to resign from her job.

In talaq-e-hasan and talaq-e-ahsan, waiting periods are prescribed during which the couple continues living in the same house and attempts at mediation and reconciliation are expected to be made

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When she returned to her house, and attempts at reconcilia­tion were made, her father-in-law made her sign a paper that laid down a number of conditions. “There were conditions like I would quit my job, that I would not argue with my in-laws and do as they tell me,” she says. When she returned, she found CCTVs installed inside the house to monitor her activities and found out from her husband that her in-laws didn’t want them to have children for another year. “They wanted to wait for a year to see if they would want to keep me as their daughter-in-law,” she says.

When she broached the subject of returning to her job, she says, her hus­band and his family packed her bags and dropped her at her parent’s house in Bara­mati. Earlier this year, she got three talaq-e-ahsan notices via Speed Post. While she declined two of them, she ended up open­ing one of them.

“Since then, I have gone to the local muftis and pointed out to them that he can’t give me such a talaq because neither have I been living in the same house nor have any attempt at reconciliation been made. But they just got very angry and said I was simply bring­ing a bad name to my husband’s family and to the community by pursuing these arguments,” she says. She has also filed a police complaint alleging domestic violence and seeking the restitution of conjugal rights and hopes these will compel her husband and his family to restore their marriage.

According to Ahmed, the Lucknow-based lawyer both Hina and Nisha have reached out to for advice, it is necessary that prac­tices such as talaq-e-hasan and talaq-e-ahsan are done away with. He, however, worries that in an attempt to seek a ban on these practices in the Supreme Court, even if such a ruling were pronounced, it might not resolve their personal differences with their husbands.

Hina, however, wants to ensure Muslim women do not have to suffer from such practices in future. “I am a journalist living in Delhi. So, I have the means to do something. But a lot of women who find themselves in the same position don’t,” she says. She also hopes, she says, to find out why her husband wants the divorce.

“That is the least my son and I deserve. He should tell me why,” she says. “Not give a talaq just like this.”

About The Author

Lhendup G Bhutia

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