What is Nikah halala, how it was established and where it stands in modern India

Indian Muslim jurist Moulana Ashraf Ali Thanvi (1863-1943) explained the concept clearly in Bahishti Zewar (a comprehensive handbook of Islamic beliefs and practices) that, “A person pronounces a revocable (raji) talaq. He then reconciles and resumes cohabitation. Two or four years later, under provocation he once again pronounces a revocable talaq. On recovering from provocation, he again resumes cohabitation. Now two talaqs are over. Hereafter, whenever he pronounces a talaq, it will be counted as the third talaq, which will dissolve the marriage forthwith, and should a remarriage be desired by the parties necessitate halala (inter-mediatory marriage).”

After the pronouncement of talaq, the woman becomes ‘haram’ (unlawful and therefore, prohibited) for the husband.

In context of divorce, a bar was laid down in order to ensure that the man did not use it as a tool for torturing his wife (by marrying and divorcing her as many times as he desired). It was the rule of irrevocability. This rule was introduced to maintain strict discipline and to ensure that marriage was not reduced to mere mockery.

It is said that this rule was established by the Prophet himself. Dr. Furqan Ahmad, a Research Associate at the Indian Law Institute wrote in Understanding the Islamic Law of Divorce that “the Prophet tried to put an end to [this] barbarous pre-Islamic practice” which was “to divorce wife and take her back several times in order to ill-treat her”. The Prophet, by the rule of irrevocability of the third pronouncement, indicated clearly that such a practice could not be continued indefinitely. Thus, if the husband really wished to take the wife back, he should do so; if not, the third pronouncement after two reconciliations would operate as a final bar.”

Jurist Moulana Ashraf Ali Thanvi further explained in Bahishti Zewar that if the husband and wife wanted to re-marry for the third time, it could be done only on one condition: the woman had to marry another man and sleep with him. “Now, if the second husband dies or divorces her after sexual intercourse,” wrote Thanvi, “then after completing the Iddat period, she can re-marry the first husband. But, if the second husband died or divorced her before sexual intercourse, then it will be of no account and she cannot marry the first husband in such condition.”

This law, followed by a small part of the Muslim community, is called Nikah Halala.

In India, personal laws pertaining to divorce and marriage are anchored in religion. Triple talaq (where a man can divorce his wife by saying “talaq, talaq, talaq”) is a grave, contentious issue, where the central government feels Muslim women should push back. At the rally in Uttar Pradesh in 2016, Prime Minister Narendra Modi said such laws denied Muslim women their fundamental right. “The lives of Muslim women cannot be allowed to be ruined by triple talaq,” he said. In the midst of this, the government is also pushing the Supreme Court to obliterate nikah halala and polygamy in India. But many Islamic authorities and religious leaders believe BJP’s drive to abolish triple talaq in India is a political ploy.

Defending its hidebound religious laws, the All India Muslim Personal Law Board (AIMPLB) has said before that any deviation from such Quranic injunction (validity of triple talaq) would go against the mandate of the Almighty himself. “Such an act would be going against the very integral practice of Islam, and would be disregarding the precise directions of Allah and also his Messenger which is nothing but a sin,” the body has been quoted as saying.

Nikah halala is a law that requires a woman to marry and sleep with another man in order to return to her first husband. There have been instances where the husband regrets divorcing his wife through triple talaq and in the hope of reconciliation, hands over his divorced wife to another man for marriage, under the condition that the latter would divorce the woman the next day. Muta (conditional marriage), however, is considered to be a sin in Islam and the Sharia law does not permit it. The husband is therefore considered a sinner. The second caliph of the Rashidun Caliphate, Umar (579-644 AD) considered such husbands to be sinners and said, “I will stone to death such persons”.

In modern India, nikah halala has been manipulated and misused. In October 2016, an Indian Muslim woman claimed that her husband’s friend raped her. The husband had lost his wife to his friend in a gambling game, and therefore had to divorce her. In order to get her back, the husband asked his friend to sleep with the woman. The accused (husband’s friend) called it part of the “nikah halala”, so that her divorced husband could take her back.

In the midst of this, several websites and social media pages have emerged offering halala marriage services to women who’ve been divorced by their first husbands. For instance, a twitter page called Halal Nikah reads, “Assalamu’alaykum Alhmadulillah, this is a marriage service for muslims worldwide. take an advantage of it now.”

Such sites offer men who are willing to marry and sleep with the client (in this case, a distraught and divorced woman) in exchange for a fee. Many women who approach these services are either blackmailed or taken advantage of. Many are asked to pay large sums of money. In 2016, a BBC reporter went undercover, posing as a divorced Muslim woman who was seeking a halala marriage service through facebook. The reporter was asked to pay a sum of £2,500, for a bogus, temporary marriage where the man on the facebook page offered to marry and sleep with her.

In patriarchal societies, religious laws have often been lopsided, favouring men. Laws such as triple talaq and nikah halala are not only archaic, but they are also debilitating for Muslim women. The legality of such laws need to be challenged and subsequently, discarded.