VERACITIES OF HALALA: AN ANALYTIC DIVE IN TO THE PRACTICE BY MANISHA BORAMPETA

INTRODUCTION:

Nikah means marriage and Halala means to make something halal or permissible and thereby make it lawful. Nikah Halala or Nikah-E-Halala is also termed as Tahleel marriage. It is a practice followed by Muslim community in which a Muslim woman, after being divorced by irrevocable Talaq (Triple Talaq) by her husband, marries another man voluntarily and consummates the marriage and again irrevocably divorced with her second husband in order to enable her former husband to remarry her. It is a process in order to reunite the couple where the divorced women have become lawful(halal) for her husband after the completion of Nikah Halala.

According to Shariyat Law, the process of Nikah halala can be performed only when Muslim women have divorced by irrevocable Talaq (Triple Talaq or talaq-ul-biddat) by her husband, i.e. if husband pronounces Talaq for third time or three consecutive times directing her wife with the intention to divorce, then the final divorce takes place called as ‘major divorce’ (al-baynuna al-kubra) they cannot remarry even though they have the personal consent until the completion of Nikah halala. Where as in ‘minor divorce’ (al-baynuna al-sughra), it is a initial declaration of talaq by husband which is revocable talaq, he can break off the divorce at any time during iddah period (three full menstrual cycles). Nikah halala has become an exceptional case to triple talaq to continue the marital tie. It is a pre designed act exploiting women in the name of Halala-fixing.

ORIGIN OF NIKAH HALALA:

The word ‘Halala’ originates from the term ‘Halal’ which means permissible or lawful which is at odds with ‘Haram’, Islamic word which means forbidden. The practice of Halala emanated among the Muslims in India as they contorted the essence of triple talaq and endorsed this form of marriage. The Islamic law elucidates that the women who got irrevocably divorced with her husband will become haram to him. She become halal to him if she marries another man and gets consummate the marriage in order to remarry her former husband. The main impetus of halala is to instruct the husband religiously that he cannot be permitted to divorce his wife purposefully, even if he aimed it, he cannot get back his divorced wife. The same has been gradually subsumed in the society and in the sustained male dominated society women have become puppet in the hands of men.

HALALA IN QURAN:

The Holy Quran expounds (verse 2: 230):

“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.”[1]

The holy Quran says a woman becomes haram or forbidden to her husband after divorce, he cannot remarry her immediately. As remarriage is encouraged only after the completion of iddah period women can marry any other men of her choice and cohabit with him, but if her second husband dies or unfortunately divorces her, then in such condition she can look for other life partner including her former husband to get married to her will without any conspiracy. The verse implies warning that the conjugal and marital rights between them will be surrendered and she cannot foreseeably reunite with him which is not affixing with the concept of halala. This provision in Quran meant to prevent married men to divorce her wives in jest. Holy Quran also mentioned that a women can marry her former husband solely on irrevocable talaq or on death of her second husband, but in the practice of Nikah halala the remarriage of a women with her former husband is pre-planned and intentional as she gets temporarily married and cohabited with some stranger which is quite opposite to the Quranic rules and Islamic law Shariyat[2].

Practicing of Halala is a biddat (unacceptable innovation in the religion) and it is neither a part of Islam nor it is mentioned in Quran[3]. Nowhere does the Quran mentioned carte blanche for Muslim man to carry out Halala marriage. Nikah halala is a practice in the name of religion and it is an intentional outwitting of personal laws of Islam and making mockery of the laws of Allah. It is inconceivable from the Quran as it degrades the women stature in the society by making her puppet in the hands of men, who can repudiate their marriage through snappy utterances of talaq on petty instances and get back her after completion of temporary marriage after making her to consummate with stranger, which Quran ardently execrates as it always protects women.

Historian Rana Safvi said: “there is no such thing as Nikah halala in the Quran.” Also said Nikah halala is a term which the Muslim men have come up with for their convenience by fooling the innocent people in order to remarry her wife. It is man-made Fiqh and issue Fatwas[4].

Quran does not permit Nikah halala to fraud the things to halal the Nikah. The pertinent point is that halal or permissibility cannot be contrived in advance. The second marriage of a divorced women cannot be validated when there is a prior understanding or intentional plan between them to arrange a temporary marriage and get divorced, it will become an illegitimate relation with the second husband as well as with the former husband if she gets back to him in accordance with the pre-planned halal of Nikah[5].

SAYINGS BY ISLAMIC SCHOLARS:

Prophet Muhammad (PUBH) messenger of Allah said “the first husband (muhallil) and the temporary husband (Muhallil Lahu) were cursed by Allah” he cursed both the men who practiced halala and for whom halala is practiced[6].

Ibn Majah, a Muslim scholar calls the temporary husband as “a borrowed billy-goat.” According to Prophet, Nikah halala (Tahleel marriage) is haram (forbidden) in Islam and it is impermissible and a grave sin in the sight of Allah.

The second Caliph Hazrat Umar ruled during his reign that he will punish with stoning to death, those who perform a pre-planned Halal.The Caliph Omar and Abdullah bin Omar regarded such marriages as adultery.

Imam Sufian Sauri says: “If someone marries a woman to make her Halal (for her ex-husband) and then wants to keep her as wife, he is not permitted to do so unless he solemnizes a Nikah afresh, as the previous Nikah was unlawful.”

According to the sayings of various Islam scholars, Nikah halala is intentional temporary marriage of the divorced wife with stranger which is haram in Islam.  Such marriages have also been denounced by the Prophet. Hence, Nikah halala is un-Islamic had no place in Quran and it is neither a culture nor tradition of Muslims.

MISINTERPRETATIONS ABOUT HALALA:

There are many misconceptions about Halala because this practice is not recognised in Quran.

  • The practice forces the divorced women to get through the temporary marriage with another person. But the fact is that according to the Quranic principles, a divorced Muslim woman cannot be forced to go through temporary marriage with another person to remarry her again. Because the second marriage that she entered is lawful and lasts permanently until the second husband dies or divorces her.
  • Divorced wife has no choice of her own. But according to the verse 2:230 of Quran that divorced wife can choose her life partner according to her wish.
  • Muslim women who had gone through triple talaq can remarry her former husband by marring temporarily to someone else. But the fact is that she is not allowed to remarry her ex-husband it is haram. She can choose to marry him only under certain unfortunate circumstances like on death or by getting irrevocably divorced by her second husband.
  • Halala is intentional pre-planned temporary marriage in order to reunite with his ex-husband but it is not an Islamic principle.
  • The purpose of remarriage is to protect the women from the clutches of men, as no husband misuses the talaq by taking it lightly. But not the purpose to go through the process of Halala in order to legalize the marriage with former husband.                                                                            

HOW WOMEN ARE AFFECTING:

Nikah Halala is an anti-women practice affecting the large section of the society. Many Muslim men are harassing their wives to engage in temporary marriage and offering them for one-night stands to remarry her in order to save their marriage. They are letting their wives to sleep with other men even without formal marriage, which is not allowed by Quranic principles. Many women are submitting their bodies to the strangers forcibly by their ex-husbands in order to get her back and they being rejected after the completion of process. She is also being humiliated and facing mental trauma by their family members and relatives when she reunites with her husband. In some cases, it is seen that the second man to whom she is married temporarily refuses to divorce her and she is then compelled to live with second husband[7].

Many men are taking advantage of women who are grappling to save their marriage from Devastation as most of the women thought that it will be an abominable thing to live alone without their husband. She became a plaything to men to divorce and remarry her whenever he wants. It is one of the evil practices to harass the women on announcing talaq (third time) for petty reasons and take her back after completion of halala, out of her insecurity and innocence she would agree to go back to him even though she doesn’t want to. Many Islamic scholars encouraging the sale of women to restore their marriages which is resulting in abundant increase of temporary marriages. Many abusive activities are taking place against women like making money and vulnerable activities and they are going through physical and psychological abuse in the name of halala.

To assure equal rights to the women, social taboos like Nikah halala should be abolished. Strict provisions have to be introduced and penalties for the crimes against the women should be made severe. Government has to take initiative to stop such practices and adopt new strategies to protect women from such evil practices in the name of religion.

HALALA AND RAPE:

Nikah halala is a heinous practice which is nothing but committing rape of a women in the name of religion. When the companion-less Indigent wife, in contemplation of returning to her former husband and saving her marriage, qualms at nothing including her dignity and endures the coercive tryst supported by religion, it can dexterously be etched as ‘without her consent’[8]. As this practice is on equal footing with the offence of rape defined under article 375 of Indian Penal Code, 1860. Thus, a man is said to have committed the offence of rape if the act of penetration has done without the consent of women irrespective of the fact that women did not physically oppose the penetration and he is punishable under the offence of rape.

Explanation 2 to section 375 of IPC defined consent as:

Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act[9]:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity[10].

women who are indulging in forcibly themselves in one-night stands and temporary marriages with some stranger in order to remarry her former husband will be treated as offence of rape as she is not voluntarily agreeing or not giving any consent to engage in such practice. when women are practicing Nikah halala which is pre-designed or pre-planned, then we can hold that she acting of her own free will or with consent then it will not attract the offence of rape under section 375 of IPC as she acted voluntarily. Thus, it can be said that the understanding the term consent abridges down the concept of voluntariness. This concept is interpreted in Uday v. State of Karnataka[11], supreme court has quoted this in many other relevant judgements to interpret the term consent under section 375, it was held that voluntary or consented act done by the women does not attract the offence of rape.

PRESENT SCENARIO IN INDIA :

Many petitions were filed by the Muslim women including a PIL (Public Interest Litigation) challenged by advocate and BJP member Ashwini Upadhyay before the Supreme court, seeking the declaration of practice of Nikah halala among Muslims is unconstitutional and illegal as it is violating right to equality and gender justice[12]. Petition also mentioned that, “A complete ban on Polygamy and Nikah-Halala has long been need of the hour as it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights, equality should be the basis of all personal law since the Constitution envisages equality, justice and dignity for women[13],”

One of the petitioner Noor Jahan pleaded to declare section 2 of Shariyat Act[14] is violative of articles 14, 15, 21 and 25 of Indian constitution asking the court to declare such practice as an offence under section 375 of IPC[15]. Also further claimed that the practice of  Nikah halala had no basis in the Quran and had been banned or restricted by various Islamic countries and it should be done same in India to protect women from the gender discrimination.

In my opinion, Nikah halala should be abolished as it is violating Article 14 (guarantees equal rights to all citizens), Article 15 (prohibits discrimination on grounds of religion, race, caste, sex or place of birth), Article 21 ( right to life and personal liberty)Article 25 (Freedom of conscience and free profession, practice and propagation of religion) of Indian Constitution. It can be interpreted from the cases of triple talaq as both are the taboo Islamic practices in the society and affecting the women at large. Triple talaq was banned on one of the grounds as it was going against the basic tenets of Quran and violated Shariyat law and it is interpreted in the case of Shayara Bhano v. Union of India[16] as it violating article 14, 15 ,21, 25 of the constitution and the same should be interpreted in case of Nikah halala and declare it as unconstitutional.

CONCLUSION:

Islam is one of the prominent religions in the world. Many Quranic rules are misinterpreted due to the non-codification of the Muslim personal laws, like the concept of halala which is most misguided practice in Islam and it is nowhere mentioned in Quran also deviated from the Islamic principles. Many forcible actions are being taking place on Muslim women and most of them are exploited in the name of religion by misusing the law. This practice should be banned to tether out dependency faced by women and it should be criminalized under The Muslim Women (protection of rights on marriage) bill,2018 to stop men being adopting this practice. Judiciary should abolish  this social evils in the changing needs of the society and also prioritize women led developments.

FOOTNOTES:

[1] The Holy Quran, verse 2:230 (surah/chapter II ).

[2]https://www.thequint.com/voices/women/so-what-does-the-quran-say-about-nikah-halala-triple-talaq-polygamy.

[3] http://www.legalserviceindia.com/legal/article-1713-the-concept-of-halala-in-islam-truth-versus-falsity.html.

[4] https://www.thequint.com/voices/women/so-what-does-the-quran-say-about-nikah-halala-triple-talaq-polygamy.

[5] (http://englishtafsir.com/Quran/2…).

[6] http://www.legalserviceindia.com/legal/article-1713-the-concept-of-halala-in-islam-truth-versus-falsity.html.

[7] https://www.bbc.com/news/uk-39480846.

[8] www.advancedjournal.com.

[9] Section 375 of Indian Penal Code,1860 (https://indiacode.nic.in/handle/123456789/2263?locale=en).

[10] Section 375 of Indian Penal Code,1860 (https://indiacode.nic.in/handle/123456789/2263?locale=en).

[11](2003) Cri LJ 1539 SC (India).

[12] Nikah Halala ( PDFDrive.com ).pdf.

[13] https://www.livemint.com/Politics/UaI1MtwoXMhD2QrEQ6Ic8N/PIL-in-SC-challenges-constitutional-validity-of-polygamy-and.html.

[14] Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariyat).

[15] https://www.business-standard.com/article/news-ani/petition-filed-in-sc-seeking-abolition-of-nikah-halala-118072300965_1.html.

[16] (1985) SC (3) 844 (India).

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