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Introduction:

India is a home to numerous religions, cultures and traditions. The country is a secular state as enshrined in the Preamble and does not have an Uniform Civil Code governing matters relating to marriage, divorce, adoption, guardianship, maintenance and so on. The major religions have their own personal laws which they are governed under. Such variations may lead to a conflict between the personal laws of a community and the general laws that the country abides by. One such area of dispute is the concept of Nikah Halala. This article delves into its intricacies by exploring its history, legal concerns, case laws and more.

Concept of Nikah Halala:

Nikah Halala is made up of two words – nikah meaning marriage and halala meaning making something permissible or halal. This is a practice followed by a small community of the Islamic religion where a woman, divorced by her husband by triple talaq, has to go through a certain procedure if she wants to remarry the same person she got divorced with.

The procedure includes getting married to another man and consummating the marriage, later getting divorced again. Only after consummating the marriage and getting a divorce can she remarry her former husband. The rationale behind this practice is to ‘punish’ the husband for making a rash decision and divorcing the wife. He now is subjected to the pain of letting his wife be in a relationship or consummate that relationship for that matter with another man.[1]

While Nikah Halala also called tahleel marriage is a common practice in the communities that follow it, this form of marriage is a haram (that which is forbidden) according to hadith. Hadith ranks only second to Quran as a source of law for the Islamic community.

It is widely accepted by all schools and thus, has the capacity to propound or restrict the followers to do something. According to renowned scholars, entering into a tahleel marriage with an intention of ending it dishonours the concept and sanctity of marriage. Both the men involved are committing a sin. When there is no sincerity in the marriage, the tahleel husbands are considered adulterers.

Constitutional Validity:

Using Nikah Halala as a way of remarriage is contended to be violative of the following fundamental rights enshrined in the Indian Constitution:

Article 14 – Right to Equality – the practice of Nikah Halala puts women under a disadvantageous position. They are not treated as equals to the men of the community.

Article 15(1) – Right against Discrimination – on the basis of sex that is a person being a woman, they are subjected to arbitrary decisions put forward by the husbands which they bear the consequences for.

Article 21 – Right to Life – this fundamental right does not only include a mere animal existence. Right to Life includes a right to leading a dignified life. These practices are derogatory to the dignity of a woman.

Triple Talaq and Nikah Halala:

There exists different ways through which a Muslim couple can get divorced. It can be divided into:

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

Under the first head, where the husband can divorce the wife, there can be express divorce or implied divorce. Express divorce further can be divided into – Talaaq-i-sunnat and Talaaq-i-biddat.

Triple talaq comes under Talaaq-i-biddat. Under express talaq, the husband is required to say the word ‘talaq’ to the wife thrice. This is done over a period of three months or three menstrual cycles. The first talaq is an initial declaration and is revocable. The second declaration is a minor divorce and the third and final declaration is irrevocable. The divorce is thus finalized. The couple cannot have any sexual relations during this time and if they do, the talaq stands repudiated.

But triple talaq is a practice of the husband saying the words talaq thrice on a single occasion. The man can unilaterally end the marriage within seconds. This put the married Muslim women at a very disadvantageous position. Nikah Halala is a consequence of triple talaq.

The Supreme Court, in the landmark judgement of Shayara Bano v. Union of India and Ors (2017)[2], held the practice of triple talaq unconstitutional. The petitioner had questioned the constitutional validity of triple talaq, Nikah Halala and polygamy on the grounds that it violates the fundamental rights enshrined under Article 14, 15(1), 21, 21(a), 25 of the Constitution.

The five-judge bench, composed of judges from five different communities were chosen. They were Chief Justice J. S. Khehar (a Sikh), and Justices Kurian Joseph (a Christian), R. F. Nariman (a Parsi), U. U. Lalit (a Hindu) and S. Abdul Nazeer (a Muslim). After hearing the arguments from both sides, held triple talaq unconstitutional on a 3:2 majority.

While the apex court held triple talaq unconstitutional, it remained silent on the practices of Nikah Halala and polygamy even though the former is a consequence of triple talaq itself. This has led to some confusion amongst the community. While a few say the practice of Nikah Halala is only a result of triple talaq and thus, it stands unconstitutional as well. Others say the practice is a standalone and can be followed despite triple talaq being illegal.

Aftermath of Judgement on Triple Talaq:

Multiple bills and ordinances were passed after the Shayara Bano[3] judgement. Unfortunately, due to a multitude of reasons it could not come to fruition. In the end, The Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted in July, 2019.

The Quran on Nikah Halala:

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] Thus, it does not have the backing from its source. This has emerged from the customary practices that the community follows. One of the major contentions by the people of Islam itself, who are against the practice is that it is not mentioned anywhere in the holy books. This again repudiates the claims of the orthodox Muslims who wish to continue the practice.

Conflict of Interests:

Any issue regarding personal laws is sensitive and has to be dealt with a lot of care as people are very particular about their religion, its customs and practices. Generally, when a change in personal law is propounded, it creates a divide between the people of that community and the people suggesting the change along with the promoters of Uniform Civil Code.

The case of triple talaq or Nikah Halala is a bit different. Here the opposing parties are the women of the community along with their supporters against the advocates of the traditional and orthodox Muslim law and its practices. The conflict of interests within the Islamic community stems from the fact that the practices of triple talaq or Nikah Halala or even polygamy among many other practices is extremely discriminatory towards women.

These are prevalent practices which promote the patriarchal mindset of people and propagate the degradation of women’s dignity in the society. The people who support this particular practice claim that it is actually a form of punishment for the husband. The momentary rage that he had, which materialised into him pronouncing an instantaneous, immediate and arbitrary talaq requires him to undergo some penalty. The price that he pays is seeing his now ex-wife consummating her new relationship.

This concept is fundamentally flawed for multiple reasons. One of them being, the woman going through a divorce which she had no say in, getting married to another man, consummating that marriage, getting divorced from the new partner and then remarrying the former husband – all this just because the man had a momentary lapse of judgement and made an uninformed decision.

Organisations such as the All-India Muslim Personal Law Board (AIMPLB) were against the criminalisation of triple talaq and on the other side were Bharatiya Muslim Mahila Andolan (BMMA), Hindu nationalists, Muslim liberals among various others.

Recent Updates:

In 2018, a few organisations along with some women from the Islamic community filed a petition in front of the supreme court to criminalise the act of Nikah Halala as well. One of the petitioners is the Bharatiya Muslim Mahila Andolan (BMMA). The apex court also sent a notice to the Central Government to look into the issue and the government took a strong stand against the practice of Nikah Halala. The All-India Muslim Personal Law Board (AIMPLB) on the other hand is not favouring the ban on Nikah Halala. They believe that for the rarest of rare situations, it should be allowed. The case of Sameena Begum v. Union of India[5] of 2018 was later joined with a larger writ petition in Ashwini Kumar Upadhyay v. Union of India[6] as part of public interest litigation (PIL).[7] They are questioning the constitutional validity of Nikah Halala on the grounds of Article 14, 15 and 21.

The petitioners are also praying for the criminalisation of talaq-e-biddat, nikah halala and polygamy under Sections 498A, 375 and 494 of the Indian Penal Code, 1860 respectively. A five-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh and Sudhanshu Dhulia heard the matter in 2022 but as one of the judges had to retire, the matter is still pending in court.

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ARTICLE WRITTEN BY SWETA SHOUMYA

[1] Indulia, B. et al. (2022) The Practices of Triple Talaq, Nikah Halala and the Resulting Confusion in International Family Law, SCC Blog. Available at: https://www.scconline.com/blog/post/2022/08/26/the-practices-of-triple-talaq-nikah-halala-and-the-resulting-confusion-in-international-family-law/ (Accessed: April 9, 2023).

[2] (2017) 9 SCC 1

[3] (2017) 9 SCC 1

[4] Nikah Halala: A Practice Prevalent and a Practice Challenged, (2019) PL (HR) April 84

[5] (2018) 16 SCC 458

[6] 2021 SCC Online SC 629

[7] Indulia, B. et al. (2022) The Practices of Triple Talaq, Nikah Halala and the Resulting Confusion in International Family Law, SCC Blog. Available at: https://www.scconline.com/blog/post/2022/08/26/the-practices-of-triple-talaq-nikah-halala-and-the-resulting-confusion-in-international-family-law/ (Accessed: April 9, 2023).