Mistreatment of women has always been one of the prevalent issues in the country. Time and again there have been questions raised concerning the status and role of women in Indian society. It is certainly not a secret that women had always been at the shorter end of the rope when it comes to the performance of traditional and religious practices. Since India never had any uniform personal laws, the institution of marriage has always been dictated by the age-old religious practices which were formed in abidance of the religious books. For Islam, most of the personal laws take their source from the holy book of the Qur’an. The book is considered to contain the words of God. ‘Nikah Halala’ is one such religious practice that Muslims have followed for centuries. This practice is prevalent in some parts of India too.
In Islam whenever an action is signified as ‘Halal’ it usually means that the action is permissible or acceptable in the eyes of ‘Allah’. The word ‘halala’ takes its root from the word ‘Halal’. According to Islamic religious books, a Muslim man has only been given the liberty to remarry the same woman twice. Nonetheless, if the man decides to dissolve the marriage for the third time, the woman has to marry another man and consummate the marriage and if only the marriage gets dissolved or the husband dies and the woman becomes a widow, then only would she be eligible to remarry her previous husband.
The Indian Muslim jurist, Moulana Ashraf Ali Thanvi explained the concept of ‘Nikah Halala’ in Bahishti Zewar (a comprehensive handbook of Islamic beliefs and practices). He writes, “A person pronounces a revocable (Raji) 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 talaq 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).”
According to Islam, a woman becomes ‘Haram’ after the pronouncement of talaq (given in a single sitting). When something is identified as ‘haram’ it means unlawful and hence, prohibited. After two talaqs a woman becomes ‘Haram’ for the husband and it is prohibited in the eyes of Allah to marry a ‘Haram’ woman. The woman is eligible to remarry for the third time only after the completion of ‘Nikah Halala’. It is said that the practice was laid down in order to ensure that the man does not torment the wife by giving frequent divorces when in temper and remarrying her upon coming to realize his mistake. The rule was introduced to ensure discipline and to affirm that the sacred institution of a marriage is not being turned into a farce.
Dr. Furqan Ahmad, a Research Associate at the Indian Law Institute in his writing in Understanding the Islamic Law of Divorce mentions that “the Prophet tried to put an end to [this] barbarous pre-Islamic practice” which was “to divorce the wife and take her back several times in order to ill-treat her”. Though the justification that is attached to the religious practice seems righteous and safeguards the interest of a married woman, the practice often seems to be used as a weapon to harass women in the Islamic community. The practice of ‘Nikah Halala’ is also followed when a man gives Triple Talaq (which is saying the word Talaq 3 times in one sitting) to his wife. It is believed that the wife becomes ‘haram’ for her husband after ‘triple talaq’ and a ‘Nikah Halala’ is a requirement so that the two can remarry. This absurd practice is now often used to exploit women in the name of religion. On many occasions, religious practices like this make women vulnerable to constant harassment and mental agony.
Nikah Halala – An Excuse for Sham Marriage?
‘Nikah Halala’ is one of those practices which are now being subjected to manipulation and gross misinterpretation. In recent years there has been news where ‘Nikah Halala’ has been used as an excuse to justify actions like rape and forced prostitution. Women are often convinced to have a sexual relationship with strangers so as to become eligible to be able to reunite with their husband, who is said to be repenting because of his temper and wishes to reconcile with his wife after the arrangement is over.
Sometimes the arrangement involves relatives or maulanas who were approached for the sake of a quick marriage in the name of ‘Nikah Halala’. Sometimes the husband himself makes arrangements that are required to perform the sham marriage. In all this, the woman is the one who suffers the most. First, she is the victim of constant mental agony from being divorced, which in these cases often happens verbally over frivolous matters, and then is forced to marry a stranger and consummate the marriage only for a short period of time so as to remarry her previous husband. This is all done in the misguided belief that the ‘haram’ woman becomes a ‘halal’ for her legally married husband after having sexual intercourse with another man.
Misinterpreted Islamic Practice of Nikah Halala – A Tool To Exploit Women
The whole arrangement with a third party can also be compared to that of prostitution as how on many occasions money is part of these types of transactions. The man who gets to be the groom for a few days usually gets generously paid for his services. The way the women are treated throughout this practice is a prove of the existence of the deep-rooted belief of how a wife is nothing but a possession that can be stolen and retrieved back. In all the cases the women are forcefully made to submit to this type of abuse with no legal safeguard because most of the time the women are desperate to reunite with the family that they had to leave behind because of the ‘Talaq’.
In 2016, a Muslim woman claimed to be raped by a friend of her ex-husband. Apparently, the husband lost his wife in a gambling game to his friend because of this he had to divorce his wife. The husband and his friend tried to justify the whole arrangement by claiming that it was a part of ‘nikah halal’ so that the husband could remarry the woman again. There is no shortage of cases like this. Similarly, there have been many cases where the women claim to have been the victim of physical torture and abuse and have been forced to participate in ‘Nikah Halala’.
Recently several advertisements have surfaced on the internet offering services of ‘Nikah Halala’ to divorced women in exchange for money. Often the women who agree to take up these services end up getting blackmailed. It has been also found through various investigations that sometimes the maulvis, offer to marry divorced women for a very short period of time in order to help them restore the marriage with their previous husband in exchange for a large sum of money. Incidents like this shed light on how so many women end up being subject to abuse, exploitation, and blackmail in the name of ‘Nikah Halala’, which was originally made in order to protect the institution of marriage.
Today it has become a practice where the woman ends up being downgraded with no voice of their own, and their actions are dictated by men who claim to be doing this in the name of religion. ‘Nikah Halala’ is usually followed among the population who believe that the personal laws are anchored in the religious text and the practices and rules mentioned stand above all other laws. ‘Triple Talaq’ was one such practice of similar nature which points out the grave antagonistic issue that is prevailing in our country. Religious practices like this seem extremely crude and deprive women of their fundamental right to protection of life and personal liberty (Article 21 of the Indian Constitution), which is one of the basic fundamental rights guaranteed by the people in India.
Law vs. the Abominality
In response to the PIL filed against the oppressive practice, The All India Muslim Personal Law Board, states that the ‘Mohammedan Law is based on Holy Quran and Hadith’ and hence is not to be banned. Practices like ‘Nikah Halala’, according to the board cannot be tested on the basis of the fundamental rights and therefore should be immune from being scrutinized by the courts of the country. According to the board, the personal laws do not fall within the definition of Article 13 of the Indian Constitution and cannot be challenged on the basis of Fundamental Rights enshrined in the Constitution. With this, the board completely disregarded the suffering that the woman who is made to be part of practices like ‘Nikah Halala’ have to go through.
The practice of ‘Nikah Halala’ has been long under scrutiny and there have been many debates regarding the eradication of the practice. But, the question that comes forward is how the government would implement laws against practices like this which take their source from religious texts. As in the case of ‘Triple Talaq’, even though the Supreme Court of India ruled the practice of instant Triple Talaq unconstitutional, and the Parliament passed the Muslim Women (Protection of Rights on Marriage) Act of 2019 which states that any man who would divorce their wife through triple talaq would be punished. The number of cases surrounding the practice has not decreased much.
Since the Mohammedan personal laws are not codified, they often are deformed in such a manner that it is the women who end up being subject to dominance and are made to abide by the patriarchal needs of the community. In Qur’an, forced marriages and sham marriages are sins. But it is seen being done in the name of religion and in all this, the women have to go through physical and psychological torture. The practice of ‘Halala’ is exceedingly vicious and offensive to the honor of women. The manner in which this practice has been constructed in the contemporary situation is nothing but a ghoulish glimpse at the Islamic state’s duty to rape in the name of religion.
In cases where there is an arrangement of a prefixed ‘Halala’ marriage, it becomes very difficult to understand whether the woman has any right to deny participating in the act. Islam with its more than 1500 years of history is certainly one of the misinterpreted religions in the world and the faults lie with the people who follow the religion with sheer ignorance. The traumatic practice of ‘Halala’ is very much related to the practice of ‘Triple Talaq’ which has been pronounced unconstitutional by the Supreme Court in Shayara Bano v. Union of India. The Bhartiya Muslim Mahila Andolan now aims to abolish the acts of polygamy and ‘Nikah Halala’ too. Proper legislation in place would ensure the protection of women from exploitation through these religious practices. A codified law while banning this practice will also be able to lessen the misery faced by women in the name of ‘Nikah Halala’, at least to some extent if not able to abolish the practice completely from being exercised by the people of the Islamic community.