In this article, Astha Jain from IMS Law College discusses the practice of Nikah Halala in India.
Understanding Nikah halala
In Islam, the word Nikah refers to “marriage” and halala refers to something which can be considered “lawful”. According to the writings in Quran, a divorced woman in order to remarry her husband has to become halal (lawful) by marrying another man, consummate the marriage and then get divorced again. After her second divorce, she has to undergo the period of ‘iddat’ and only after this it becomes lawful for her to remarry her husband again.
This is an age-old tradition practiced in Islam which empowers a Muslim man to divorce his wife by revocable talaq and remarry the same woman twice. After he divorces his wife for two times she is considered haram (unlawful) and in order for the wife to be lawful again, she has to marry another man and have sexual intercourse with him. After ending the marriage which can be through divorce or the death of the husband she becomes lawful and can remarry her first husband.
Legal provisions of Nikah halala in Quran
In the second chapter of the Qur’an, Allah says the following
“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers.” Qur’an (2.229)
Allah then says in the Qur’an
“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah. These are the limits of Allah, which He makes clear to a people who know.” Qur’an (2.230)
It is believed that this provision was added by the prophet himself to prohibit the barbaric practice of a Muslim man torturing his wife by divorcing and remarrying his wife for many times as he wishes. Dr. Furqan Ahmad, a Research Associate at the Indian Law Institute wrote a detailed account of this in Understanding the Islamic Law of Divorce which said that the prophet by the rule of irrevocability had conveyed that if the husband wishes to take back his wife he would do so but if he doesn’t then the divorce is final after the third pronouncement. The third pronouncement is laid down as a final bar after two reconciliation.
Nikah halala and Rape
Many incidents have been reported where Indian Muslim women are openly exploited in the name of Nikah halala. One such incident was when in October 2016, a Muslim woman had claimed that her husband’s friend had raped her. Her husband had lost her in a bet during gambling and was forced to divorce her. As after the divorce she was considered to be forbidden, her husband’s friend offered to marry her and have sexual intercourse with her in order for her to be lawful again and remarry her husband.
Apart from these incidents several websites and social media pages have emerged which offer services to divorced women to be able to marry their husbands again. For example, there was a twitter page name halala Nikah which consisted of men offering services of marrying and sleeping with a divorced woman in exchange for a fee. Women who take up these services offered by these websites are exploited and blackmailed.
In a sting operation done by a newspaper agency, it was found out that maulvis (religious scholars) are offering themselves for one night stands to divorced women for them to restore their marriage with their husbands. They charge between Rs. 20,000 and Rs. 1.5 lakh to participate in the practice of Nikah halala. They offer an entire package in which they promise to marry, sleep and then divorce the women the next day. Women fall prey easily to these services as they think it is their only option in order to save their marriage.
In 2016, a BBC reporter went undercover looking for halala services through Facebook by claiming to be a divorced Muslim woman. She was asked to pay £2,500 by a man to marry and sleep with her.
It is incidents like these when women are downgraded as mere objects with no rights and voice of their own and men rape and exploit them claiming it right in the name of religion.
Taking a stand against the practices of Nikah halala, the All India Muslim Personal Law Board (AIMPLB) said that the people misusing Nikah halala as an excuse for rape will be punished under the rape charges. They were referring to the recent case in UP where a woman was forced to consummate her marriage with her father in law, mahali said it is illegal to marry the father in law under the Islamic rules.
Legality of Nikah halala in India
In India, personal laws have dominated for a long period of time and continue to do so. While the centre is keen on eradicating such practices which deprive citizens of their fundamental rights, these practices are being followed by people in the name of religion.
Nikah halala is followed by a small Muslim community as they believe that the personal laws pertaining to marriage and divorces is deeply anchored in their religious texts and no law of the country can trump that. Triple talaq (where a man can divorce his wife by saying talaq thrice) one of such personal laws is the perfect example of a grave and antagonistic issues in our country. However, muta (conditional marriage) is considered a sin in Islam and people practicing it are considered to be sinners under the sharia law.
Defending their disdainful religious views the All India Muslim Personal Law Board (AIMPLB) has said that any aberration from the Quranic injunction is considered to be going against the almighty himself. The triple talaq was declared unconstitutional last year and the bill to impose a penal provision is passed in the Lok Sabha. When the issues were raised to impose a law prohibiting polygamy and Nikah halala as well, the apex court said to consider these issues separately and is bound to hear petitions against it.
The former union minister Arif Mohammad Khan, whose advice on triple talaq was sought last year by the government said that Nikah halala is not a relevant issue. According to him Nikah halala in its odious forms practiced in the cases of triple talaq where the husband would give talaq in a fit of rage and then regret his decision. Then the religious scholars would tell him that he can only marry her if she marries someone else and consummates the marriage. He said that if practiced in the original form it is actually empowering for a woman. He had quit the Rajiv Gandhi led government after it had brought a law to overturn the Shah Bano judgment.
Legal validity of Nikah halala today
The Bhartiya Janata Party (BJP) led central government has taken a stand against the practice of polygamy, triple talaq and Nikah halala which are widely practiced across the country under the Muslim personal law. While triple talaq was declared unconstitutional last year and a bill of making the practice of triple talaq as a penal provision has been passed in the Lok sabha. While it is yet to see the light of the day as it is pending for the approval of Rajya Sabha. The Supreme Court said to hear the petition against the other two separately. Without getting into the accounts of the religious freedom the government plans to take stand on the basis of the gender equality with citing examples of our neighbouring countries which are Pakistan and Bangladesh which have shunned these practices.
It is believed that the All India Muslim Personal Law Board (AIMPLB) is said to take strong opposition of the prohibition of Nikah halala and polygamy as they believe that any variation from Quran is the disrespect of the prophet himself. They also believe that all of this is just a political ploy by the government. It is believed that they will agree to codification to the personal laws and it will pave a way for the implementation of the uniform civil code in the country.
In modern India, these laws are misinterpreted and misused to a very large extent. These personal laws are crude and deprive the citizens the basic fundamental rights which are guaranteed by our constitution. These laws have no place in modern India and should be abolished in order to make a way of a country where the citizens have equal rights not just in theory.