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NATIONAL UNIVERSITY OF
STUDY AND REASRCH IN LAW,
RANCHI
FAMILY LAW RESEARCH PAPER
NIKAH HALALA: A PRACTICE PREVALENT AND A PRACTICE
CHALLENGED
SUBMITTED TO: SUBMITTED BY:
SANGITA LAHA NAME: MOHD FAHAD ANSARI
ASSISTANT PROFESSOR SEMESTER: 3
SECTION: A
ROLL NO: 1241
TABLE OF CONTENTS
- DECLARATION…………………………………………………………………….……………
- ACKNOWLEDGEMENT………………………………………………………………………...
- INTRODUCTION………………………………………………………………………….…….
- QURAN ON NIKAH HALALA…………………………………………………………….……
- ORIGIN OF THE CONCEPT OF NIKAH HALALA……………………………………….…...
- FUTURE OF “NIKAH HALALA” WILL IT STAND THE CONSTITUTIONAL TEST….….
- JUDICIAL STAND — PERSONAL LAWS V. FUNDAMENTAL RIGHTS…………………
- NIKAH HALALA: INTRINSIC PART OF RELIGION OR A DISTORTED PRACTICE……
- CONCLUSION………………………………………………………………………………….
ACKNOWLEDGEMENT
Firstly, I would like to thank my teacher and mentor, Sangita Laha ma’am, who showed faith in me by providing such an excellent topic. Her constant guidance has played a vital role in the completion of this project successfully. I express my gratitude to all the staff members and administration of NUSRL Ranchi, for providing me such a beautiful library. Their support cannot be expressed in words. Finally, I would like to express my heartfelt gratitude to all those who helped me to complete this project without any problems. Thanking you NAME: MOHAMMAD FAHAD ANSARI SEMESTER: 3 SECTION: A ROLL NUMBER: 1241
1. INTRODUCTION
“Nikah halala is one of the most heinous practices in Islamic religion which calls for cohabitation by the woman, who has been haphazardly divorced by the husband, with another man, in the name of marriage, so as to make her “halal” again and enable the first husband to remarry such divorced woman. The practice of “nikah halala” has gone through serious distortions with each passing decade. The real purpose behind the practice of nikah halala was to make it difficult for the impulsive man, who pronounces talaq upon his wife, to get his wife back into the marriage. Thus, the procedure stipulated for nikah halala must be followed without any predesign. However, fairly recent incidents have come to light unveiling the physical, psychological and financial exploitation of women in the name of nikah halala^1. The process is generally termed as “halala-fixing” which involves a man other than husband agreeing to marry the woman, consummate it and then ultimately ending up in divorce. A woman becomes “halal” and can return to her husband again only if she goes through this atrocious process.”
2. QURAN ON NIKAH HALALA
(^1) Rashi Gupta, Abominable Rapes in the Name of Nikah Halala: An Analytical Study of Halala with Special Reference to Rape Laws in India , Vol. 3 IJARD 131-134 (2018).
“The word nikah halala nowhere appears in the Holy Quran and thus, refers to an un-Islamic impermanent nikah obligated upon the wife who has been a victim of reckless pronouncement of irrevocable three divorces by her husband^4 .” “However, the talaq which has been pronounced first two times could be revoked. But if it is pronounced for the third time then the divorce becomes irrevocable.”
3. ORIGIN OF THE CONCEPT OF NIKAH HALALA
(^4) Rashi Gupta (Note 1).
“The word “halala” emanates from the word “halal” which means “which is considered appropriate or permitted within the bounds of Islam.”^5 Opposite to the concept of “halal” is “haram” which means “what Allah has forbidden.” The Quran expatiate the meaning of both “haram” and “halal” extensively. According to Quran, a woman becomes “haram” to her husband immediately post-divorce and can only become “halal” if she marries someone else, consummate the marriage and the person (whom she has married) decides to divorce her. The entire procedure straightens out one thing that the procedure for making a woman halal for her first husband should not be prefixed. The purpose being to catechize men that they cannot be permitted to divorce their wives by pronouncement of talaq impetuously in a state of anger or under the influence of intoxication; and if they do, it will be strenuous for them to get back their divorced wife. A forced marriage is a form of psychological and emotional violence^6 .”
4. FUTURE OF “NIKAH HALALA”— WHETHER IT WILL STAND
CONSTITUTIONAL TEST
“In 2017 came a landmark judgment in Shayara Bano v. Union^7 of India which ended the decades old practice of instant triple talaq. The judgment was landmark in the sense that it gave (^5) Gary R. Bunt, Islam in the Digital Age: E-Jihad, Online Fatwas and Cyber Islamic Environments , Vol. 39, Middle East Studies Association Bulletin, 113-115 (2005). (^6) Rashi Gupta (Note 1). (^7) (2017) 9 SCC 1.
unlawful (haram) to lawful (halal) for the same husband, if both wants to remarry themself, through the process of nikah halala by any third person by marrying and consummating the marriage with her is not only unconstitutional in the light of the above stated triple talaq judgment but can also attract criminal implication under relevant provisions of the Penal Code for forcing a women to sexual practices against her will and dignity.” “The Bombay High Court in Sabah Adnan Sami Khan v. Adnan Sami Khan^9 , where the bone of contention was whether the wife has to compulsorily go through the process of “nikah halala” irrespective of the mode of the talaq, the Court held that:” “Thus, in our opinion, where talaq becomes irrevocable through any mode between the parties, for remarriage between them, it is not necessary that the halala must be observed. In other words, merely because a talaq has become irrevocable, does not mean that in case of every irrevocable talaq, irrespective of its mode, for remarriage between the same couple, it is necessary that the halala formality must be complied with by the wife^10. Hence, it can be comfortably argued that courts have also taken the view that call for the abolishment of this practice as it is repressive and violative of fundamental rights of Muslim women.”
6. NIKAH HALALA — AN INTRINSIC PART OF THE RELIGION OR A
DISTORTED PRACTICE
“The Supreme Court in John Vallamattom v. Union of India^11 , held in para 44 that laws dealing with marriage and succession are not part of religion. Further in paras 30 to 32 it provides that law cannot remain insulated from the changing dynamics of the society and has to change with time.” (^9) 2010 SCC OnLine Bom 446. (^10) Id. (^11) (2003) 6 SCC 611.
“Further, Supreme Court in Khursheed Ahmad Khan v. State of U.P^12_._ held that what is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. The Supreme Court very clearly elucidated that only the essential parts or practices of a religion are guaranteed protection under Articles 25 and 26 of the Constitution. Now, the question arises is what constitutes or meant by essential parts and practices of a religion?” “The Supreme Court answered this question in Commr. of Police v. Acharya Jagadishwarananda Avadhuta^13. According to the Court:” “9. … Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices. 14 ” “Applying this aforesaid test, it is clear that the practice of “nikah halala” does not constitute an integral part of the Islamic religion and an end to this practice will not change the fundamental nature of Islam.” “However, the All-India Muslim Personal Law Board (AIMPLB which is one of the parties in this case has relied upon State of Bombay v. Narasu Appa Mali^15 where the Division Bench of
12 (2015) 8 SCC 439.
13 (2004) 12 SCC 770.
(^14) Id , pg. 782-783.
15 1951 SCC OnLine Bom 72.
7. CONCLUSION
“The dreadful stitch of halala which is the abominable corollary of triple talaq has already been declared unconstitutional (being violative of the fundamental right guaranteed under Article 14 of the Constitution) by the Supreme Court of India in Shayara Bano v. Union of India^26. After the remarkable victory by the Bharatiya Muslim Mahila Andolan against instant triple talaq in the Court, they are now ready with its draft of “Muslim Family Law, 2017”, which, if debated and enacted by Parliament, would bring an end to the unconstitutional act of polygamy, too^27 .” “Without any doubt it can be claimed that the practice of nikah halala is degrading and humiliating to the status of women. It cannot be denied that the practice was introduced with an (^26) Supra note 24. (^27) Zakiasoman, Bharatiya Muslim Mahila Andolan Seeks Comments of Concerned Citizens on the Draft of the Proposed Muslim Family Law, BMMAINDIA (8-9-2017), available at https://bmmaindia.com/2017/09/08/bharatiya-Muslim-mahila- andolan-seeks-comments-of-concerned-citizens-on- the- draft-of-the-proposed-Muslim-family-law/.
intention to safeguard the rights of women in a marriage and to save her from arbitrary and haphazard divorce, however, the practice has not been able to serve the intent. One such reason for this failure is the unwritten or uncodified laws in Muslims because of which the practice has been grossly misused by Muslim men. The practice has now become obsolete and redundant in the 21st century where nations are giving rights to refugees, LGBT community, right to vote to women and many more. Therefore, a ban on this humiliating practice must be imposed using a codified law in order to collar out the despondency faced by women in the name of nikah halala.”
