Vaquill is a legal publication house that simplifies legal information and publishes content in multiple Indian languages.

What languages does Vaquill publish in?

Vaquill publishes content in English, Hindi, Marathi, Tamil, Telugu, and Bangla.

The Practice of Nikah Halala in Islam

Nikah is an institution of a legalised union between a man and a woman in Islam. Under Muslim law, a marriage is considered a contract in which there is an offer (ijab) and acceptance (qubul) of both parties to the marriage in front of witnesses. Two people marry to live a happy life where both can love and trust each other.

However, in case of unfortunate events, the parties can separate their ties from each other through divorce (talaq). The right to divorce primarily lies with the husband under Muslim law. A wife cannot divorce her partner as per her will. She can divorce where the husband has delegated such a right to her or under an agreement, i.e., either by Khula or Mubarat.

It has been seen in various cases that a husband, in exercise of his power to divorce, pronounces divorce over his wife in fit of anger, or during an intoxicated state, etc. After such a divorce (when it becomes irrevocable), a wife becomes unlawful i.e. ‘Haram’ for her husband, and in order to regain her lawfulness, a practice called Nikah Halala or Tahleel marriage is used.

Nikah Halala

Halala is an Arabic word that comes from the word ‘Halal’ which means something permissible or lawful. Anything that is not Halal is Haram in Islam. In the context of marriage, once a husband divorces a wife through an irrevocable talaq, she becomes Haram for the husband, and he cannot continue a marriage with her.

Nikah Halala is an Islamic customary practice that allows a woman to remarry her first husband after having divorced him. It is a kind of temporary marriage that is contracted between two people in order to make a woman lawful again for the former husband. In this practice, the woman must first marry another man and have sexual relations with him, thereby completing the marriage, and then obtain a divorce from that second husband. After this, she can return to her first husband if both parties are willing to do so.

Such a form of marriage has not been accepted when solely done with the intention of making the wife lawful so that she could marry her former husband. The Islamic law criticises such kinds of arrangements.

Based on the cases where Halala is being practised in India, the essential features can be listed as:

The Halala marriage is temporary in nature;
Marriage with a condition to divorce;
Solemnised secretly;
May be against or without the free consent of the wife;
In some cases, the person who marries the wife takes money;
The former husband marries wife after the dissolution of the second marriage.

Divorce and Remarriage

Under Muslim law, a man can divorce his wife by pronouncing divorce upon her and revoke the same if he realises his mistake. But the marriage is not terminated immediately, and the wife enters the iddah period (the period for which the wife has to wait before remarrying another person).

During such a period, she continues to live in the marital home. The husband has the right to revoke the talaq by either verbal declaration or physical intimacy. He can revoke such divorce (talaq-i-rajai) by continuing and having sexual relations with the wife anytime before the completion of iddat period. Although such divorce can be made and revoked twice.

Once he divorces for the third time, such divorce becomes irrevocable (talaq-i-bain), and now to resume the marriage, the wife has to perform Nikah Halala.

In the case of Talaq-ul-Biddat (Triple Talaq), a marriage comes to an end instantly, and there is no scope for reconciliation between the husband and wife.

As per the Holy Quran, Verse No. 230 of Chapter 2 (Surah Al-Baqrah), which reads as:

“ If a husband divorces his wife three times, then it is not lawful for him to remarry her until after she has married another man and then is divorced. Then it is permissible for them to reunite as long as they feel they are able to maintain the limits of Allah. ”

After the third pronouncement, the husband cannot take the wife back, and she is free to marry again after completion of the period of iddah (that period during which a woman is prohibited from remarrying after the dissolution of her marriage and is required to live a simple life). The marriage with the other man must be done with the intention of continuing it and not for the purpose of remarrying the original husband only. Though if the wife is divorced again, then she has the option to marry the first husband or any other person as well after following the iddat period.

Evolution of Nikah Halala in Islam

The pre-Islamic period was known as Jahiliyyah (the period of ignorance), in which various marital practices were harsh for women, and could include elements such as polygamy and easy divorce.

Prophet Muhammad introduced various reforms that emphasised the sanctity of marriage and the significance of women's consent and rights within marriage. Reforms related to the practice of "marriage by agreement" were introduced by the Prophet Muhammad. However, the term "Nikah Halala" is not expressly specified in the Holy Quran.

Some Hanafi scholars have inferred this practice from a Hadith that states that "she (the divorced wife) must now taste the sweetness of another."

The practice of Nikah Halala aims to understand men that they should not impulsively divorce their wives by saying triple talaq under the influence of anger or intoxication. At the same time, it allows the wife a right to marry another person and start a better life with him. Such marriage provides security to a woman and protects her from the vicious cycle of marriage and divorce.

If the divorced wife marries a second husband in a pre-planned Halala (that is, marrying only to become lawful for remarrying her first husband), both her marriage to the second husband and any subsequent remarriage are considered invalid.

This idea was presented by the Prophet in order to free women from the pre-Islamic cycle of divorce and remarriage. But with the passage of time, this idea has become corrupt and abusive. These days, women are experiencing rape, forced marriages, forced divorces, etc.

Nikah Halala and different Muslim Communities

Nikah Halala is a practice that is forbidden in Islamic law. It is considered a sin to marry a woman with the intention of divorcing her so that she can marry her former husband. It is a customary practice that has evolved over time. It is practised by a small part of the Muslim community.

Nikah Halala is practised differently among Shia and Sunni communities, reflecting differences in interpretations of Islamic law and cultural practices.

In many Sunni communities, Nikah Halala is accepted as a legitimate practice, based on specific interpretations of the Quran and Hadith. The Sunni perspective typically emphasises the conditions outlined in Islamic texts regarding divorce and remarriage. The Hanafi school of thought has the view that after an irrevocable divorce, a wife needs to marry someone else first.

Shia scholars tend to have a more critical view of Nikah Halala. Many Shia interpretations question its necessity and may not consider it a required practice. Some Shia leaders argue that the need for Halala contradicts the principles of justice and equity in marriage.

The Legal Aspects of Nikah Halala in India

In India, the matters of divorce and marriage are governed by religious personal laws. The Muslim personal law is not codified and is governed by Quranic texts, Hadiths, fatwas, the judicial decisions, and acts of Parliament. The practice of Halala is not illegal in India. The Indian judiciary has come across the issue of nikah-halala several times, but no concrete decision has been given till date.

The Honourable Supreme Court of India has declared triple talaq as unconstitutional in Shayara Bano v Union of India. After that, four petitions:

Ashwini Kumar Upadhyay v Union of India & Another, WP (C)No. 202/2018 (India)
Sameena Begum v Union of India & Ors., WP (C)NO.222/2018 (India)
Nafisa Khan v Union of India & Ors., W.P. (C)No. 227/2018 (India)
Muslim Mohsin Bin Hussain Bin Abdad Al Kathuri v Union of India & Ors., WP (C)No. 235/2018 (India)

were filed in 2018 before the Supreme Court challenging the constitutionality of nikah-halala and polygamy on the grounds that they violate the rights to equality, non-discrimination, and dignity of Muslim women.

In response to the above petitions, the All-India Muslim Personal Law Board (AIMPLB) and Jamiat Ulama-i-Hind moved to the Supreme Court for impleadment. It is argued that Muslim Personal Laws are part of Islamic culture and tradition and are protected as freedom of conscience under Articles 25(2) and 29 of the Indian Constitution.

The petitions are pending for decision before the Court.

Criticism of the practice of Halala

Nikah Halala has faced significant criticism in India, particularly from women's rights advocates, legal scholars, and various community leaders. Here are some key points of criticism:

1. Exploitation and Coercion

Forced Marriages: The women are forced to enter a Halala marriage, often without their full consent. This practice can turn what should be a consensual act into an exploitative situation. Families often force women to marry and have sexual intercourse with a person and further pressurise them to be divorced.
Social Stigma: Sometimes, women who are divorced may face societal pressure to remarry their ex-husbands, sometimes leading to situations where they feel they have no choice but to participate in Halala. It gave the husbands a malicious benefit through which they can torture their wives. The whole idea of introducing such a concept has been abused.

2. Legal Ambiguities

Lack of Legal Protections: There are no clear legal frameworks surrounding Nikah Halala leaving women vulnerable. The absence of strict regulations can result in abuses that are difficult to challenge legally.
Judicial Scrutiny: Though recent court cases have scrutinised the practice, questioning its validity under Indian law and the Constitution, particularly regarding women's rights and personal autonomy, no concrete decision has been given till date.

3. Gender Inequality

No gender equality: Nikah Halala enhances gender inequality, as it places women in a subordinate position where the men can divorce them on their will and even forces them to marry some other man to again become lawful for remarriage. Even some men have started to provide Halala services and ask for huge money in return.
Crime against women: Women are raped and blackmailed by the Halala marriage husband, due to which crime against women increases.

4. Impact on Women's Rights

Violation of Rights: This practice violates fundamental human rights, particularly the right to choose one’s partner and the right to live free from threats and exploitation.
Calls for Reform: There is a growing demand for reform within the Muslim personal law system in India, with advocates pushing for interpretations that prioritise women's rights.

Conclusion

Overall, the practice of Nikah Halala in India raises concern about the position of women in society. The issues of consent, gender equality, and protection from exploitation should be the priority in securing the dignity of women in India. The whole idea of Halala marriage is forbidden by the Muslim personal law itself. The concept should be scrutinised by the court, and a decision supporting the improvement of society should be made.

Frequently Asked Questions (FAQs)

What is Nikah Halala?
It refers to a practice where a Muslim woman is required to enter into a temporary marriage with another man and have sexual intimacy with him in order to remarry her former husband after getting a divorce from the second marriage.
Why was the concept of Nikah Halala developed?
The concept of Halala marriage was evolved during the period of Prophet Mohammed in order to educate men not to impulsively divorce their wives out of anger or intoxication. It was developed to safeguard the women from the vicious cycle of marriage and divorce.
In which case did triple talaq become unconstitutional?
In Shayara Bano vs. Union of India (2017), talaq-ul-biddat i.e., triple talaq, became unconstitutional in India.

References

Written by Samraddhi Mutha

Samraddhi is a law aspirant with a keen interest in Business and Corporate Laws, eager to work in the corporate world while gaining practical experience. As a CS aspirant, she is particularly drawn to Corporate Statutes, researching related aspects, and drafting various legal documents..