Nikah Halala

TILL TALAK DO US PART

Introduction:

Nikah Halala comes from the word 'Halal' meaning permissible and therefore 'Lawful'. In context of marriage, according to the traditional Islamic Law, Nikah Halala is referred to a customary law, with which, a divorced Muslim woman can become 'Halal' (lawful) for her ex-husband again after the process is complete.

What is Nikah Halala?

According to the Islamic customary rules, if a Muslim man divorces his wife with a revocable divorce, he shall have the liberty to get back with her during Iddat period. In�Islam,�iddah�or�iddat�(Arabic: العدة;�period�of waiting) is the�period�a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a nikah (marriage) would be known. During the iddat period, if the husband either expressly with words or by establishing physical relations with the wife, implies that he wants the wife back, and the wife agrees too, then they both shall not be considered divorced. Even if the iddat period is over, the husband can remarry his ex-wife anytime (through a fresh Nikah or Mahr), unless she married someone else after the iddat period expired.

Now if the husband remarried his ex-wife after the iddat period was over and divorced her again, the same process of remarriage applies until he divorces the wife for the third time. After the third divorce if the husband and wife could not get back together during the iddat period, the wife is considered 'Haram' (unlawful and therefore prohibited for the husband). After the expiry of the iddat period, of the third divorce, the Muslim woman is considered a free woman. So even if the third time, the husband has a change of heart and decides to go back to his ex-wife, he can only do so after she gets married to someone else and consummates the marriage and after that if the man she married dies or willingly asks for divorce, she has to wait for the idiot period and after that, she becomes a free woman again and she may remarry her former ex-husband.

Explanations and Views of various prominent jurist:

Indian Muslim jurist Moulana Ashraf Ali Thanvi (1863-1943) explained the concept clearly in Bahishti Zewar (a comprehensive handbook of Islamic beliefs and practices) that, 'A person pronounces a revocable (raja) talaq. He then reconciles and resumes cohabitation. Two or�four years later, under provocation he once again pronounces a revocable talaq. On recovering from provocation, he again resumes cohabitation. Now two talaqs are over. Hereafter, whenever he pronounces a talaq, it will be counted as the third talaq, which will dissolve the marriage forthwith, and should a remarriage be desired by the parties necessitate halala (inter-mediatory marriage).'

It is argued by various Islamic scholars that this rule was laid down in order to ensure that a muslim man did not use it as a tool for torturing his wife, by Nikah and Talak frequently and consecutively. Nikah Halala is said to be the rule of irrevocability. This rule helped maintain strict discipline and ensures that marriages are not reduced to mere mockery.

Jurist Moulana Ashraf Ali Thanvi further explained in 'Bahishti Zewar' that if the husband and wife wanted to re-marry for the third time, it could be done only on one condition: the woman had to marry another man and sleep with him. 'Now, if the second husband dies or divorces her after sexual intercourse,' wrote Thanvi, 'then after completing the Iddat period, she can re-marry the first husband. But, if the second husband died or divorced her before sexual intercourse, then it will be of no account and she cannot marry the first husband in such condition.'

Many prominent Muslim people have argued that because of the fundamental right to religion mentioned as a Basic Framework to our Constitution, this Muslim religious custom has taken over the Muslim community like a 'Legalised Prostitution'.

In his 'Marriage, Divorce and Re-Marriage (Halala) in Islam', Zafar Iqbal Kalanauri elaborates this theology:

'There is no concept of halala in Islam. This is something that has been made by some Muslims and unfortunately is now seen as part of the Shariah by some Muslims. The rule of the Holy Quran is that if a man divorces his wife for the third time in one marriage contract, then the wife cannot go back to the man unless she (genuinely) marries another man and then (genuinely) is divorced by that man� this rule should not be dealt with by pre-planned marriage and divorce.'

Misuse of the practice of Nikah Halala:

There are various reports of manipulation and misuse regarding the cases of Nikah Halala. In October 2016, an Indian Muslim woman claimed that her husband's friend raped her. The husband bet his wife in a gaming game and lost her to a friend, and therefore had to divorce her. After the woman's claim of getting raped, the husband and the friend argued in their defence that the husband willingly asked his friend to sleep with the woman in order to get her back, after the completion of the Nikah Halala. The accused husband's friend called it part of the 'nikah halal', so that her divorced husband could remarry her, once, the husband's friend divorces her.�

Since it is almost impossible to find a man who would assuredly divorce the woman, in various cases, it has been observed that the local clerics tend to offer their services to the helpless man and woman. These services include a nikah between the cleric and the girl, with a prior deal of divorce the next day or a few days later. The whole exercise is said to be a 'hush-hush' and everything is done in dark leaving absolutely no witnesses of the horrifying acts.

Further, there have been many instances where the husband divorces his wife in the heat of the moment with irrevocable form of divorce (the Triple Talak) and instantly regrets it when the anger cools down and in the hope of reconciliation, the helpless and guilty man willingly hands over his divorced wife to another man for marriage and sexual intercourse on the condition that the latter would divorce the woman the very next day. After the divorce, the woman has to wait throughout the iddat period and after the iddat period is expired, she is allowed to remarry her former husband. Such marriages are known as 'Muta' (conditional marriage), however, this kind of marriage is considered to be a sin in Islam and the Sharia law does not permit it. The husband in such cases is therefore considered a sinner.

Misuse of Nikah Halala through social media:

In the midst of all this, there are several websites and social media pages that have emerged on the internet offering halal marriage services to women who have been divorced by their first husband. There are various other sites that offer men who are willing to marry and sleep with the client (distraught and divorced women) in exchange for a fee. Many women or helpless men who reach out and pay to get these services are either blackmailed or taken advantage of. Most of them are asked for large sums of money (even in lakhs).

Views of the All India Muslim Personal Law Board (AIMPLB):

The All India Muslim Personal Law Board (AIMPLB) submitted before the court:

There are unequivocal and unambiguous Hadiths of the Prophet Muhammad (PBUH) where mock marriages and mock divorces are reported to be a cause of curse from the Almighty Allah. It is in the said Hadiths that the reference to the term Halala is found, though it is not mentioned in the Noble Quran. Whereas in any case, the term 'Nikah Halala' is not found even in the Hadith. The Hadiths of the Prophet Muhammad (Peace Be Upon Him) in condemning Halala are as follows: 'Allah's curse is on the one who makes a contract or agreement for Halala (Both the one who carries out Halala and the one who it is done for' (Sunan al Darami/ Mishkat al Masabih), and 'Allah has cursed the muhallil (one who marries a woman and divorces her so that she can go back to her first husband) and the muhallal lahu (first husband).'

Conclusion:

Laws such as triple Talaq and Nikah Halala are not only archaic, but they are also oppressive for the Muslim women. The legality of such laws need to be challenged and subsequently, discarded.