Let us Simply Criminalize Institutional Nikah-Halala

Mohd Imran
LLM Candidate at South Asian University.
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Let me start by saying that there is no such thing as ‘Halala’ or ‘Nikah-Halala’ in the Holy Quran or Islamic traditions. But still, the debate on ‘Halala’ remains in limelight. The expression ‘Halal’ means permissible or lawful. ‘Halala‘, therefore, can be translated into ‘making something or someone permissible or lawful.’ There is still lack of authoritative literature (at least in English) on the origin of the expression ‘Halala’ as a concept of temporary marriage. For the purpose of understanding Halala in its present form, a reference can be made to Shaheen Sardar Ali who says that the tahleel marriage, also known as the halala marriage, is entered into by a divorced woman where she and her former husband wish to remarry and must have an intervening marriage enabling them to marry their previous spouse.[1] Halala in this form is indeed an evil practice. The expression ‘evil practice’ does not refer to the concept of remarriage under Islam. This expression implies the practice among Muslims whereas divorced Muslim woman is asked to marry another person ‘for the time being’ so that she can become eligible to remarry her former husband. Therefore, for the purpose of this article, Halala should be distinguished from the concept of voluntary remarriage under Muslim law.

The most quoted quranic verse with reference to Halala is verse number 230 of Chapter 2 (Surah Al-Baqrah) which reads as: “So if a husband divorces his wife ˹three times˺, then it is not lawful for him to remarry her until after she has married another man and then is divorced. Then it is permissible for them to reunite, as long as they feel they are able to maintain the limits of Allah…” This verse allows divorced Muslim women to remarry the same person only after she has married another person and then is divorced from the second marriage. In other words, it does not mandate the remarriage at any cost, especially not at the cost of the honor. This could be made clear by reading verse number 231 of Chapter 2 (Surah Al-Baqrah) which reads as: “When you divorce women and they have ˹almost˺ reached the end of their waiting period, either retain them honourably or let them go honourably. But do not retain them ˹only˺ to harm them ˹or˺ to take advantage ˹of them˺…”

Would it be honourable for a woman to remarry a man who divorces and asks his wife to marry and have sexual intercourse with another man to become eligible for remarriage? Does not Halala give an opportunity to take advantage of a woman? For now, I left this question to the readers to think about.

Moving forward, The Holy Quran is silent on whether a woman can remarry her former husband after her second husband dies without giving divorce. Al-Hidayah, a leading compendium of Hanafi jurisprudence provides that a divorced woman cannot become lawful for her husband until she marries another man through a valid marriage and he has intercourse with her, and who thereafter divorces her or dies while married to her (Al-Marghanini, Al-Hidayah, book no.VIII, page 19). Moulana Ashraf Ali Thanvi says if the second husband dies or divorces her after sexual intercourse then after completing the Iddat period, she can re-marry the first husband (Bahishti Zewar, page no. 430).

Another relevant but less quoted verse of the Holy Quran is verse 232 of Chapter 2 (Surah Al-Baqrah) which says: “When you have divorced women and they have reached the end of their waiting period, do not prevent them from re-marrying their ex-husbands if they come to an honourable agreement…” This verse dictates the second husband not to prevent his divorced wife from marrying her former husband.

There is no verse in the Holy Quran or in Islamic traditions which refers to marriages for the purpose of making a woman ‘eligible’ or ‘lawful’ for someone, in this case for the former husband. According to a relevant Hadith, Prophet Muhammad (peace be upon him) cursed a person who marries someone’s wife just to make her lawful for remarriage.

As per this Hadith, Ibn Mas’ood (radiyallāhu ‘anhu) narrated, “Allah’s Messenger invoked the curse upon the man who made a woman lawful for her first husband and the one for whom she was made lawful.”[2] Another similar tradition says, “Allah’s Messenger (peace be upon him) cursed the man who made a woman lawful for her first husband and the one for whom she was made lawful (the men involved in Halalah)”[3]

It is crystal clear that the temporary marriage (muta marriage) or marriage for the purpose of making a woman permissible for her first husband then divorcing her (tahleel marriage) are both haraam and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband.[4]

One of the reasons for the rampant cases of Halala was triple talaq. Due to triple talaq, utterance of talaq thrice could repudiate a Muslim marriage instantly. The recognition of instant talaq made many Muslim couples to resort to Halala (a forbidden practice). There is no doubt that those clerics who legalized Halala have not only committed sin but also violated the fundamental and human rights of women. Triple talaq too was not a quranic concept and was already banned in many Islamic countries before it was invalidated by the supreme court of India. Currently, triple talaq is void and illegal in India.

Since triple talaq is no more repudiating factor for marriages, does this mean that Halala would extinct? That would be too optimistic to think. The real problem with Halala is its “institutionalization.’ Several media reports (here and here) have come out with potential proof of Halala rackets. The ‘institutional Halala’ is problematic in two ways; firstly, people who are in this business will always look for innocent and potential prey to run their business. Secondly, Halala in essence claims to make a woman lawful or purify for former husband by involving the agency of third man through a sham marriage. This is not allowed under the Shariah law.

Let us look at the petition filed in the Supreme Court of India against the practice of Halala. This petition seeks the direction of the Supreme Court to declare Nikah Halala “illegal and unconstitutional” for being violative of Articles 14, 15, 21 and 25 of the Constitution. The All India Muslim Personal Law Board (AIMPLB) has also moved SC for impleadment in plea challenging the validity of Halala. It says that Halala is a ‘cultural issue’ and involve personal laws derived from religious scriptures and cannot be challenged.

I have objection from both the parties on declaration of Halala as illegal and unconstitutional for the one and same reason, i.e., Halala is not part of Shariah and is prohibited by Prophet (peace be upon him). Since Halala is not well defined concept like triple talaq, neither party has yet clarified as to what to ban and what not. The petition challenging Halal might end up arguing to prohibit the “voluntary remarriage ‘of a Muslim woman. Another challenge that lies with this petition is that what would the petitioner seek to invalidate or to make illegal? Whether petition would seek to prohibit the second marriage of a Muslim woman? Or whether it would seek to prohibit the remarriage? In either case, if a marriage is being solemnized voluntarily, it cannot be prohibited. On the other hand, AIMPLB, in an unnecessary attempt to protect Shariah law, might end up supporting an evil practice. In fact, the sacrosanct character of Shariah law can be protected by abandoning practices like Halala.

Thus, it is possible to prohibit Halala without touching upon the religious principles. Firstly, make “institutional Halala’ illegal and criminal act. The expression institutional Halala means a marriage with a divorcee solemnized for the time being solely for the purpose of making herself lawful for her former husband. Secondly, Halala is mostly done secretly. There is no compulsory requirement that solemnization of a marriage must be done in public. Therefore, registration of marriage in a government office should be made compulsory.

Views expressed by the author are personal

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[1]ShaheenSardar Ali, Behind the Cyberspace Veil: Online Fatawa on Women’s Family Rights. in Hellum and others (eds), From Transnational Relations to Transnational Laws: Northern European Laws at the Crossroads (Ashgate Publishing Company 2011) 130

[2] Also See: ShaheenSardar Ali (2011) at 130-133

[3] Reported by Ahmad, an-Nasa’I and at-Tirmidhi; the latter declared it to be Sahih.

[4] ShaheenSardar Ali (2011) at 130