Nikah Halala: Unraveling Tradition and Rights

Table of Contents

1. NIKAH HALALA: UNRAVELING TRADITION AND RIGHTS.
2. Abstract
3. Introduction.
4. Origins and Religious Foundations.
5. Interpretations Within Islamic Jurisprudence.
6. Constitutional Validity.
7. Triple Talaq and Nikah Halala.
8. Legal Provisions in the Quran.
9. Controversies and Human Rights Implications.
10. Conclusion.
11. References.

Abstract

Nikah halala in Muslim personal law is a topic of much discussion and examination, although it is still unclear and full of misconceptions. Tahleel marriage, or nikah halala, is a custom in which a woman who has been divorced by triple talaq gets married to another man, consummates the marriage, and then is divorced once more so that she is allowed to remarry her previous spouse. Numerous instances of Indian Muslim women being exploited on the pretense of this practice have come to light. There are significant ethical concerns when a woman is forced to remarry her first spouse despite having to have sex with another man. There are major ethical concerns when a woman is forced to remarry her first spouse despite having to have sex with another man. Emotional distress and conditions similar to marital rape may result from it. The word “halala,” which arouses interest, controversy, confusion, debate, and misunderstanding, is an important representation of Muslim personal law. The religious book ‘Quran’ has no use of the term “nikah halala.” As such, it lacks support from its origin. The community’s customary traditions have given rise to this. This essay seeks to provide a thorough analysis of the notion of halala, including a historical account of its inception, a close investigation of its modern applications, and a detailed discussion of its moral and legal ramifications.

The central research question examines and investigates the complex nature of halala, including its application in Islamic law, its ubiquity in many cultural contexts, and its effects on people individually and collectively. In order to clarify the nuances surrounding halala, this study uses a multidisciplinary research design approach and includes a comprehensive assessment of religious scriptures, legal decisions, case studies, and scholarly analyses.

The article aims to dispel common misconceptions about halala, promote educated conversations about its ethical, legal, and human rights implications, and improve knowledge of the practice through a thorough analysis. Halala remains elusive and misinterpreted despite its consequences for law and religion. In order to better understand halala, the following article will delve into its depths and examine its historical development, modern applications, and related ethical and legal issues. Prophet Muhammad introduced the idea of halala to strengthen marriages and rid them of the corrupt forms that prevailed before Islam, but it is alarming to see that halala services are now a thriving industry. It is sad to see that ‘Halala service’ is flourishing and prospering as a business these days. The article makes an effort to dispel the misconceptions and bias around the interpretation of Nikah halala. The article attempts to expose the prejudice and fallacies of the concept.  The proposed title, “Nikah Halala: Unraveling Tradition and Rights,” enfold the essence of our exploration.

Keywords: Nikah Halala, Islamic Jurisprudence, Muslim Personal Law, Divorce, Marriage, Women’s Rights, Gender Equality. 

Introduction

India is the homeland of many different traditions, cultures, religions, and customs. As stated in the Preamble, the nation is a secular state without a Uniform Civil Code that regulates issues like guardianship, marriage, divorce, adoption, maintenance, and other related issues. Each of the major religions is regulated by its own set of personal laws. These differences could result in a clash between a community’s personal laws and the national laws that the nation follows and abides by. The idea of Nikah Halala is one such topic of contention. Halala, which has its roots in Islamic law, is the custom of reuniting a woman with her ex-husband after she has divorced him and then entered into and successfully completed a marriage (consummated) with another man. In Islamic law, halala denotes something that is permissible, while nikah refers to marriage. The texts of the Quran state that a woman who has been divorced and wants to marry her first husband again must first become halal, or legal, by being married to another man, getting married, and then divorcing him again. She can only get back the right to remarry her first spouse once her second divorce and the iddat (waiting) term has passed. By using revocable talaq, Muslim males are able to divorce their wives and remarry them twice. The woman needs to get married before her second divorce can end since her former husband views her as haram, or unlawful, after the second divorce. The justification behind this custom or practice is that it is a way to “punish” the husband for acting rashly and giving divorce to the wife. He now has to bear the suffering of allowing his wife to have relationship, marriage and sex with another man, or even to carry out their relationship.

Origins and Religious Foundations

The concept of Nikah halala finds its origin in interpretations of Islamic texts, particularly the Quran and the Hadith, in particular, which offer instruction on issues of marriage, divorce, and family relations, are the primary sources of the idea of halala. The concepts and processes governing these concerns are defined by Islamic jurisprudence, or fiqh, which draws from the teachings of the Prophet Muhammad (peace be upon him) and the Quranic injunctions. Surah Al-Baqarah (2:230–232) and Surah At-Talaq (65:1–7) in the Quran discuss divorce, outlining the procedures for ending a marriage and the potential for reconciliation following a divorce, although Since the word “nikah halala” does not occur in the Quran, it refers to an un-Islamic non-permanent nikah that is required of a wife who has suffered because her husband has made careless declarations of three irrevocable divorces.[1] As such, it lacks support from its origin. It does not have the backing from its source. The community’s customary traditions have given rise to this. The fact that the practice is not addressed in any of the holy texts is one of the main arguments made by Muslims who oppose it. The significance of reconciliation and mutual respect between spouses is emphasised by the Quran, even though divorce is allowed as a last resort. Although Halala, also known as tahleel marriage, is a prevalent custom in the communities that support it, hadith states that this type of marriage is haram, or prohibited. For the Islamic community, the holy Quran is the primary source of law, with Hadith coming in second.

Since it is generally acknowledged by all schools of thought, it can either encourage or discourage followers from acting in certain ways. Renowned scholars claim that starting a tahleel marriage with the goal of ending it desecrates the purity and idea of matrimony. There is a sin being committed by both of the males. The tahleel spouses are viewed as adulterers when there is no sincerity in the marriage.

Interpretations Within Islamic Jurisprudence

Islamic jurists and scholars have provided varying interpretations of halala within the framework of several madhabs, or schools, of Islamic jurisprudence. Permissible under specific conditions, the Hanafi branch of Sunni Islam sees halala as a way to help divorced couples get back together. In accordance with Hanafi interpretation, a woman may remarry her former spouse following the conclusion of the iddat (waiting period) if she remarries and divorces another guy. But in certain situations, this method has been abused and exploited, raising questions regarding its moral and legal ramifications. Islam refers to matrimony as a “matrimony contract.” Islam does not forbid divorce as a last choice for divorcing couples, despite its emphasis on marriage and maintenance of it. In the case of Muslims, the presence of nuptial connections must be determined in accordance with Muhammadan law, not by the principles of equity or good conscience as those terms are defined by other legal systems.

Contemporary Practices and Realities and its Legal and Ethical Considerations

 In contemporary Muslim societies, the practice of halala manifests in diverse forms and contexts, ranging from genuine attempts at reconciliation to exploitative and abusive practices. In some instances, halala is conducted with the mutual consent and cooperation of all parties involved, with the intention of restoring a marriage that has faltered. However, there are also instances where halala is coerced or manipulated, often to circumvent legal restrictions or societal taboos surrounding divorce and remarriage. Women, particularly those from vulnerable or marginalized backgrounds, may find themselves ensnared in cycles of halala, facing pressure from family members or religious authorities to comply with the practice. In modern India, nikah halala has been manipulated and misused. An Indian Muslim woman reported that she was sexually assaulted by her husband’s friend in October 2016. The husband was forced to file for divorce because he had lost his wife to his friend in a gambling game. The husband requested his friend to have sex with the woman in an attempt to win her back. The accused—a friend of the husband—called it a component of the “nikah halala,” which allowed her ex-husband to reclaim her.[2]

Amidst this, a number of social media pages and websites have appeared that provide ‘halala marriage services’ to women who had previously been divorced by their first husbands. For example, “Assalamu’alaykum Alhmadulillah, this is a marriage service for Muslims worldwide,” states the Halal Nikah Twitter page. take an advantage of it now.”

These websites offer, for a cost, guys who are ready to be married and have sex with the client (a distraught and divorced woman in this example). Many of the women who seek out these services end up as victims of abuse or as targets of blackmail. Many are expected to make substantial financial payments.

Halala involves a number of difficult legal and moral issues, mainly around consent, agency, and individual rights in marriage and divorce. Critics contend that halala places unnecessary pressure on women and compromises their autonomy and dignity by upholding patriarchal traditions and unequal power dynamics inside marriages. In addition, issues have been brought up regarding the exploitation and commercialization of women under the guise of religious custom, with certain people and organisations benefiting from the facilitating of halala services. These are common activities that perpetuate the devaluation of women’s dignity in society and encourage individuals to think patriarchally. Halala has drawn harsh criticism because it violates a woman’s dignity by pressuring her into a sexual engagement that is compromised and ultimately equal to rape.

 Constitutional Validity

It is claimed that remarriage through Nikah Halala violates these fundamental rights guaranteed and assured by the Indian Constitution:

Article 14 – Right to Equality – Women are at a disadvantage because of the Nikah Halala ritual. They are not accorded the same respect as the community’s men. They are not treated equally.

Article 15(1) – Right against Discrimination – Women are exposed to arbitrary decisions made by their husbands based only on their sex, for which they must accept the outcomes.

Article 21 – Right to Life – This basic entitlement extends beyond the existence of animals. The right to live a life of dignity is part of the right to life. These behaviours are insulting to a woman’s dignity.

Triple Talaq and Nikah Halala

There are several different ways by which a Muslim couple can get divorced. It can be divided into these three:

1. By husband
2. By wife
3. By mutual consent

There are two types of divorce under the first heading: implicit divorce and express divorce. Further classifications for express divorce are Talaaq-i-sunnat and Talaaq-i-biddat.

Under Talaaq-i-biddat, triple talaq is included. The husband must utter the word “talaq” to the wife three times in order to implement express talaq. [3]Over the course of 3 months or 3 menstrual cycles, this is completed. The first talaq is a reversible proclamation that is made initially. A minor divorce is declared in the second declaration, and an irrevocable final declaration is made in the third. And so, the divorce is consummated. During this period, the couple is not allowed to have any physical intimate relations, and if they do, the talaq is rejected.

However, triple talaq refers to the custom in which the husband says the words “talaq” 3 times in one sitting. In a matter of seconds, the man can unilaterally dissolve the union. The married Muslim women were thus placed in a very precarious situation. The result of triple talaq is nikah halala.

In the landmark judgement in Shayara Bano v. Union of India and Ors (2017), the Supreme Court held that the triple talaq practice was unlawful. Because triple talaq, Halala, and polygamy infringe fundamental rights guaranteed by Article 14, 15(1), 21, 21(a), and 25 of the Constitution, the petitioner had questioned their constitutionality.

The five judges on the court were selected from five distinct groups. They were Sikh Chief Justice J. S. Khehar, together with Parsi Justice R. F. Nariman, Christian Justice Kurian Joseph, Parsi Justice R. F. Nariman, Hindu Justice U. U. Lalit, and Muslim Justice S. Abdul Nazeer. Upon hearing both parties’ arguments, a 3:2 majority ruled that triple talaq was illegal.[4]

The Supreme Court said that triple talaq is illegal, but it said nothing about polygamy or Nikah Halala, despite the fact that the latter is a result of triple talaq. The community is a little confused as a result of this. Some, however, contend that Nikah Halala is invalid because it stems only from triple talaq. Others assert that even though triple talaq is prohibited, the custom is stand-alone and acceptable.

Legal Provisions in the Quran

The topic of divorce and remarriage is clearly addressed in the Quran. According to Surah Al-Baqarah (2:229), divorce is permitted twice by Allah. Unless she marries another guy, the woman is not legally allowed to live with her former spouse after the second divorce. If the lady and her former husband can stay within the boundaries provided by Allah, they shouldn’t be held responsible for their reunion in the event that the later spouse dies or gets divorced (Quran 2:230). It is possible that the Prophet Muhammad personally included this clause to stop the destructive custom of remarriage and divorce.[5]

Controversies and Human Rights Implications

In spite of its ancient background, Nikah Halala has come under fire. 

Within Muslim communities, halala is still a divisive and debated topic that frequently comes up in conversations about morality, applicability, and validity in the modern world. Citing the possibility for harm and exploitation, some urge for the complete outlawing of halala, while others support tighter control and oversight to stop abuses of the food. A thorough grasp of the legal, cultural, and religious implications of halala is necessary to navigate these discussions. It is also important to acknowledge the variety of viewpoints and experiences that exist within Muslim communities. People are quite particular about their religion, its rituals, and practices, thus any matter pertaining to personal laws must be handled with extreme caution and sensitivity. A proposed change to personal law typically causes a rift between the community’s members and those who are advocating for the change, as well as those who support the Uniform Civil Code.

Nikah Halala, often known as triple talaq, is a little different. In this case, the women in the society and those who support them are the opposing party to those who maintain traditional and orthodox Muslim law and its customs. The fact that polygamy, Nikah Halala, triple talaq, and many other Islamic customs are blatantly discriminatory against women is the root of the conflict of interest within the Islamic society. 

These are common activities that perpetuate the devaluation of women’s dignity in society and encourage individuals to think patriarchally. Advocates of this specific practice assert that it is really a means of retribution for the husband. He must pay a price for his fleeting fit of wrath, which manifested itself in his declaration of an arbitrary, instantaneous talaq. Witnessing his now-ex-wife finalise her new relationship is the price he must pay.

There are several major problems with this idea. One of them involved a woman going through a divorce that she had no control over, marrying a different man, getting married, divorcing the new partner, and then getting married to her ex-husband again—all of which occurred as a result of the man’s brief loss of judgement and ignorant choice.

The criminalization of triple talaq was opposed by groups like the All-India Muslim Personal Law Board (AIMPLB), while groups like Bharatiya Muslim Mahila Andolan (BMMA), Hindu nationalists, and Muslim liberals were on the other side.

Conclusion

To sum up, the notion of halala in Muslim Personal Law is a multifaceted interaction between social norms, cultural customs, and religious teachings. Halala has changed and evolved in response to shifting social circumstances and legislative frameworks, even though it is based on interpretations of Islamic texts and traditions. But its practice still raises serious ethical concerns and contentious issues regarding marriage, divorce, and individual rights in Muslim communities. In order to solve the issues raised by halala and guarantee the dignity and well-being of every person living in Muslim societies, it is imperative that we move forward with encouraging transparent communication, advancing gender equality, and respecting human rights principles. In order to reconcile contemporary human rights values with Islamic tradition, Nikah Halala is still a difficult issue. It is critical that we uphold Islamic convictions while defending the rights and dignity of Muslim women as we negotiate this difficult terrain. “Nikah Halala: Unravelling Tradition and Rights,” which is the suggested title, captures the spirit of our investigation. Let’s keep having thoughtful conversations and looking for answers that respect compassion and justice. The idea of Halala Nikah is demeaning to women’s status. The practice has not been able to fulfil its intended purpose, despite being created with the intention of protecting women’s rights in marriage and preventing them from being divorced without cause. The technique has been abused by Muslim men who have forced their wives to marry other men and complete the necessary tasks so that he can get her back because of the unwritten regulations among Muslims.

References

International Islamic University Malaysia, “Sahih Muslim – Book 9, Hadith 3,” International Islamic University Malaysia, https://www.iium.edu.my/deed/hadith/muslim/009_smt.html.

The Hindu, “The case of Nikah Halala in India and a long court battle,” The Hindu (July 25, 2022), https://www.thehindu.com/news/national/the-case-of-nikah-halala-in-india-and-a-long-court-battle/article65922149.ece.

LawRato, “What is an Express Talaq?,” LawRato, https://lawrato.com/muslim-law-legal-advice/what-is-an-express-talaq-12040.

Ipleaders Blog, Shayara Bano v. Union of India, https://blog.ipleaders.in/shayara-bano-v-union-of-india/.

Quran.com, Surah Al-Baqarah 2:232 – Tafsir Maarif-ul-Quran, https://quran.com/en/2:232/tafsirs/en-tafsir-maarif-ul-quran.

“Prime Legal”, Nikah Halala: A Closer Look (Apr. 9, 2023), https://primelegal.in/2023/04/09/nikah-halala-a-closer-look/.

 

[1] International Islamic University Malaysia, “Sahih Muslim – Book 9, Hadith 3,” International Islamic University Malaysia, https://www.iium.edu.my/deed/hadith/muslim/009_smt.html.

[2]  The Hindu, “The case of Nikah Halala in India and a long court battle,” The Hindu (July 25, 2022), https://www.thehindu.com/news/national/the-case-of-nikah-halala-in-india-and-a-long-court-battle/article65922149.ece.

[3] LawRato, “What is an Express Talaq?,” LawRato, https://lawrato.com/muslim-law-legal-advice/what-is-an-express-talaq-12040.

[4] Ipleaders Blog, Shayara Bano v. Union of India, https://blog.ipleaders.in/shayara-bano-v-union-of-india/.

[5] Quran.com, Surah Al-Baqarah 2:232 – Tafsir Maarif-ul-Quran, https://quran.com/en/2:232/tafsirs/en-tafsir-maarif-ul-quran.