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Despite the importance that religion places on preserving marriage, it is not opposed to a couple divorcing if they cannot settle their differences. The questions concerning Muslim marriages and their dissolution must be resolved by reference to Muhammadan Law rather than speaking of equity or moral right as the other systems are understood. In Islam, Halala Nikah is a cultural practice that permits a man to take back his wife after uttering an irretrievable Triple-Talaq. The Holy Quran clearly says a man who divorces his wife for the third time cannot take her back until she remarries another man and is divorced by him. The kind of middle-class marriage you get when a man divorces his wife based on irreconcilable differences and then marries another woman, and then divorces her to go back to his first wife is termed as “Halala”. But to avoid having to rush into decisions of divorce, it has been observed that husbands are taking advantage of Halala Nikah. This leads to a well-planned first one gets to marry, makes it productive sexually, and then leaves the woman through divorce. This so-called “Halala-fixing” method has been criticized for putting women in harm's way that are described as rape and a violation of their dignity. 

This research examines the biases and shortcomings of the Indian criminal justice system about Nikah Halala and offers arguments challenging the constitutionality of the practice.

Key words: Halala-Fixing, Halala Nikah, Rights of Muslim Women, Triple-Talaq.

INTRODUCTION

Nikah is simply regarded as a shelter for the woman, whose security is ensured by her husband. Marriage in the light of the Holy Quran refers to Nikah Eshaan, and “eshaan” derived from “hisn” means fort or protection. The healthy relationship between the couple in this marriage reduces the husband’s sexual desires to the extent of the marriage. Sexual relations than within holy matrimony are very much prohibited in the religion of Islam. When following the objectives of the Holy Quran to address this idea, it is totally seen that Nikah Halala is not in line with the established principles since it does not safeguard women’s honor. Moreover, the Quran does not have any words about halala. The juristic principle of halala was given a very specific reservation by the Prophet Mohammed (PBUH) as sinful. Fiqhi Halala has been distorted as to the present view on Halala. Fiqh says any kind of marriage is allowed but if the intention is to divorce after some time then it is acceptable but if the divorce is compulsory then it is not acceptable. Therefore, though it is often understandable to admit the goal of divorcing, a divorce that is conditioned is not. The vast content of Fiqh literature puts down the conditions for intents as well as the prerequisite. Consequently, if a so-called regular marriage does occur and the second marriage is dissolved through reasons such as talaq (divorce) or the husband’s death and the lady is allowed to marry her first husband again, then Halala is considered real.

Today some religious leaders endorse a perverted form of halala where a woman must sleep with a man to become suitable for her former husband. In the past, the intention behind halala was to make the husband scared to cease reckless, angry three divorced, talaq. But this goal has been misunderstood. Rather than what was intended to be another responsibility for the woman, it has discouraged the husband. Sometimes, she must fix the marriage with another man to re-martial after the divorce and marriage and then divorce again. Women are now suffering this injustice as a result of developing this perverse culture of covering women for protection and security reasons. In the past, it intended to dissuade men from casually divorcing their spouses without a second thought on the consequences to follow. 

QURANIC ANALYSIS OF NIKAH HALALA

Halala was introduced by the Prophet Muhammad himself to replace medieval non-Islamic concepts in which women had no capacity for divorce while men alone could divorce them. While “haram” refers to the prohibited or forbidden thing, Halala has been deemed appropriate from the name “Halal” which connotes the permissible under Islamic Sharia Law. The word is not mentioned in Holy Quran at all. Surprisingly, the Quran stipulates that a woman who seeks divorce from her partner is unlawful to him, and can reclaim a lawful status only if she marries another man, bears him a child, and divorces him. In particular, after the triple talaq has been uttered, a husband cannot remarry his wife until she consummates another marriage but then undergoes a divorce. In some circumstances the Quran also allows male and female partners to come back together again and be together. Regarding Halala, the Quran in chapter 4 verse 19 categorically prohibits the exploitation of the practice of providing women with the platform to get married to their previous partners. But if a man marries a divorced woman without any restriction to take her back to marry her first husband, it is unlawful Halala. After the marriage has been consummated and the couple decides to get a divorce the lady can go back and remarry her first husband again. The Quran explicitly banned “Halala-fixing”, i.e., arranging marriages solely to dictate the terms of remarriage, therefore such agreements are null and void. Muslim law in general permits men to seek dissolution of marriage before wives do. The Prophet frowns on anyone who would use the rule governing marriage to blackmail Halala and also the one whose ex-husband is married.

NIKAH HALAL IN THE CONTEXT OF MORALITY AND THE CONSTITUTION

The Indian Constitution is the supreme document that brings the concept of constitutional morality to bear on all subject matters including religious practices norms and rates. Halala Nikah not only violates constitutional morality norms but also the rights enshrined under the constitution. The right of equality is under Article 14. However, Halala Nikah denies Muslim women their rights and makes them repeatedly subjected to abusive relationships which they are forced into, resembling one-night stands. This behavior undermines the constitutional provision on equality in the country. Moreover, Article 15, according to which each State party shall adopt appropriate legislative measures to give to women equal rights with men and shall ensure, through such means, the protection of women against violations of this Article, fails to prohibit polygamous marriages.

Halala Nikah deteriorates women and makes them physically, emotionally, spiritually and financially drained to make it easier to remarry the previous husband. Article 21 followed by the right to Life and Personal liberty is quite significant. But Halala Nikah denies this right by making Muslim women to undergo to unconsented weddings and subject them to their autonomy. Most of the women are pressured through family influence into signing into Halala Nikah thus denying them a decent life. Religious freedom is a right, and is protected by Article 25 and 26 of the Constitution but this right is not absolute and has to respect constitutional values. Looking at the constitution that supports equal and fair treatment for everyone, these articles’ definitions of “morality” should be understood.

There is nowhere in recent Supreme Court decisions where faith has been held to trump constitutional morality. Some of these rulings are as follows: Decriminalizing of Section 377  Permission to women of menstruating age to offer prayers at the Lord Ayyappa temple. The constitution should always be upheld to ensure fairness to every citizen of the nation.

CASE LAWS

1. Mohd. Ahmed Khan vs Shah Bano Begum And Ors; 

Background: Following their divorce, Shah Bano Begum, a Muslim woman, asked her husband Mohd. Ahmed Khan for support. She was only eligible for support throughout the iddat period (three menstrual cycles or three months following divorce) under Muslim personal law. Shah Bano approached the courts seeking maintenance beyond this period, invoking provisions of the Criminal Procedure Code (Cr.P.C) which ensure maintenance to wives who are unable to support themselves.

Court Decision: The Supreme Court ruled in favor of Shah Bano, holding that she was entitled to maintenance under the provisions of Cr.P.C beyond the iddat period. The court interpreted that Cr.P.C provisions could override personal laws to ensure equitable treatment of women in matters of maintenance.

Controversy and Legislation: The judgment sparked widespread debate and criticism, particularly from conservative Muslim groups and the All India Muslim Personal Law Board (AIMPLB). In response to the controversy, the Indian government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. This legislative act aimed to limit the maintenance payable to divorced Muslim women to the iddat period only, thereby overturning the Supreme Court's broader interpretation in Shah Bano's case.

1. Ahmadabad Women Action Group (AWAG) v. Union of India; 

Background: This case challenged several practices under Muslim personal law, including polygamy, unilateral divorce (Talaq) without judicial oversight, and the practice of Halala. According to Halala, a woman must first marry and divorce another individual before she can remarry her ex-husband.

Court Decision: The Supreme Court declined to intervene in matters governed by personal laws, stating that these laws have historically been left to religious communities to govern. The court emphasized that interference in religious practices could lead to social and legal complications. The petition filed by AWAG seeking reforms in Muslim personal laws was dismissed on these grounds.

1. Danial Latifi and another v. Union of India;

Background: This case was filed challenging the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act, 1986, following the Shah Bano controversy. Danial Latifi argued that the Act violated the fundamental rights of Muslim women guaranteed under Articles 14 (equality) and 21 (right to life and personal liberty) of the Constitution.

Court Decision: The Supreme Court upheld the validity of the Muslim Women Act, 1986,

affirming that it was enacted to provide fair provisions for maintenance during the iddat period to divorced Muslim women9. The court reiterated that personal laws, including those related to marriage and divorce among Muslims, are constitutionally valid and do not infringe upon fundamental rights guaranteed under the Constitution.

THE DEBATE OVER NIKAH HALALA : INSIGHT FROM INDIAN JURISPRUDENCE

As Muslim women in India are privileged in some ways because they have certain rights and is offered government protection. Although there is a controversy, the Hanafi School of Law supports the permissibility of Halala10 Nevertheless, Triple Talaq harms women’s rights and their emancipation. Although women who are forced to halala face great problems, they may go for it as a way of avoiding divorce and, in effect, maybe seek forgiveness from their husbands. But there is not much of a foundation with which such actions are warranted.

Some of the current petitions before the Supreme Court have sought to prevent further practice of polygamy and declare Nikah Halala unlawful. Due to the Court’s advice to the government in April 2019 on the Triple Talaq Bill’s legislative process, it was enacted to ban Triple Talaq and punish those spouses who use it. Regarding M. The Supreme Court in Siddiq (Ram Janambhoomi Temple) v. Das11 that it is useful not to over-interpret religious teaching as doing so might reduce religious followers’ faith. In Shayra Bano v. Union of India12, Justice Kurian Joseph observed that Shariat law cannot approve anything that is regarded un-Islamic in the Holy Qurans. This means that religious beliefs that are rejected are also more specifically legally void.

Several PUVs were filed before the Supreme Court in March 2013 in the interests of outlawing ‘nikah halala’ and advocating polygamous registration. However one of the petitioners contended that Nikah Halala should attract the same provision as rape in Section 375 of and yet, polygamy should be falls under section 494 of the Indian penal code which relates to triple talaq. Last on April 11, the Supreme Court cautioned the government on the legislative handling of the Triple Talaq Bill. After the Supreme Court banned Triple Talaq the administration moved to make it an offence. A husband may divorce his wife or wives under Sharia law using one of three procedures: There are three types of Talaq; Talaq-e-Ahsan, Talaq-e-Hasan, and Talaq-e-Biddat. In the case of Shayara Bano v. The Supreme Court of India got a writ petition in. Union of India & Others, in particular 2018, is famous as The Triple Talaq case. Whereas Talaq-e-Biddat was initiated by the Umayyad kings for their self-interests, there is a debate that both Talaq-e-Ahsan &Talaq-e-Hasan are also described in the holy Quran.

In a 3:2 majority judgment, the Indian Supreme Court annulled the practice of triple talaq or instant Talaq-e-Biddat. Pursuant to the judgments of the Justices U.U. and Rohinton Nariman, such collisions occurs. The dissents were given by the Chief Justice J.S. Khehar, Justice Abdul Nazeer and Justice Kurian Joseph while, Lalit delivered the judgment of the court. On balancing and proportionality the court found that this practice was irrational, inconsistent with the spirit of the Quran and Sharia, and was not amenable to free religious practice under Article 25 that protects ones freedom of religion. The decision was made as people considered that an abrupt cancellation of weddings and leaving no opportunity for Muslim women to correct their mistakes also went against their rights.While this ruling was only in relation to Talaq-e-Biddat, the issues with polygamy and nikah-halala were not even touched. By a majority vote of 3:2 However, on the constitutional status of Talaq-e-Biddat the Supreme Court for the first time sitting in a larger Bench the formal declaration came through on the 22nd August, 2017.

CONCLUSION

The Muslims Personal Law remains to be predominantly uncodified which gives religious experts a relatively large measure of freedom in interpreting and implementing religious provisions. Nikah Halala has been seen as possibly beneficial, financially, for religious leaders involved in arranging religious marriages and religious divorces, but it has had severely damaging consequences for women’s respectability. After Analyzing the matter from a constitutional point of view gives the impression of such conduct as unlawful and in contra vision with letter of the law. The tragic outcomes of halala can be traced back to triple talaq that earlier the Indian Supreme Court declared unlawful in Shayara Bano v. Union of India. This was mainly because, the decision violates article 14 of the constitution of Kenya and therefore ICT Technician has no remedy at the employment and remuneration tribunal. For Muslim women to get decent and secure lives, nikah halala practice should be banned in the society. There is always a culture of abuse of Muslim women by their husbands and other religious leaders in the community. Some may say that the Supreme Court should make a distinction between those involving nikah halala and the intervening weddings, or, recognize pre-arranged as a form of compulsion. She remarked that all the religious scholars concur that it is unlawful and supported by clear ahadith to marry a woman to enable her divorce her first husband and come back to him. Media portrayals of Nikah Halala as part of the Islamic culture serves prejudice perceptions of the religion which in essence misinterprets the shariah law consequently perpetuating negative perceptions of the Muslim people.

In the future, efforts should be made to educate the Muslim community concerning the things that are expected of them before marriage and the wedded when there is a malfunction or need for divorce, more emphasis should be made to avoid divorce for frivolous reasons. And to address these sensitive issues, the government needs to engage with the community in the relevant matter, rather than creating a scandal.

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WRITTEN BY: VAISHNAVI KUMARI