Author: Akanksha, A Student at Amity University Jharkhand
ABSTRACT
The Holy Quran, which symbolises God’s will as revealed to the Prophet via the light of Angel Gabriel, is the main basis of Muhammadan law. Mulla’s Principles of Muhammadan Law, by Hidayatullah, Nineteenth Edition, Section 34, Chapter IV, Interpretation of the Quran, says that courts enforcing Muhammadan law should generally refrain from attempting to impose their own interpretation of the Quran against the explicit ruling of highly respected and ancient Muhammadan commentators. Islam refers to matrimony as a “matrimony contract.” Islam does not forbid divorce as a last choice for divorcing couples, despite its emphasis on marriage and maintenance of it. In the case of Muslims, the presence of nupital connections must be determined in accordance with Muhammadan law, not by the principles of equity or good conscience as those terms are defined by other legal systems. In the Muslim society, a man can marry his woman once he pronounces Triple-Talaq irreversibly, a custom known as Halala Nikah. The Holy Qur’an explicitly states that a husband who divorces his wife for the third time is prohibited from marrying her again until after she has wed someone else and he has divorced her. The wife’s second marriage is known as Halala. However, it has recently come to light that Halala Nikah is being utilised as a cover for the husbands’ rash divorce announcements and as a plan for the wife’s marriage to her ex-husband. This is carried out by a process known as “Halala-fixing,” in which a different guy consents to wed the lady, consummate their union, and then file for divorce. Halala has drawn harsh criticism for putting women in precarious sexual relationships that are nothing more than rape, therefore violating their dignity. The study makes an effort to highlight the biases and misconceptions of the Indian criminal justice system in relation to Nikah Halala. It continues by outlining the justifications and arguments for the marriage’s unconstitutionality.
INTRODUCTION
The term “halala” originates from the Arabic word “halal,” which means “lawful.” In essence, halala marriage permits a divorced woman to reconcile with her former spouse. In Islam, a victim of talaq, or instant divorce, might choose to remarry her spouse by entering into a temporary marriage with a different man, a process known as halala. The third and final talaq warns parties who choose to separate that they cannot entertain hopes of remarrying each other unless the divorced wife voluntarily decides to marry another man and that marriage too ends in a divorce. This is a blatant distortion of a Quranic injunction that emphasises the sanity of marriage and the enormity of ending it for frivolous reasons. Since many marriages are illegitimate as a result of false halala, halala is unacceptable. It was reported last year that a different BBC correspondent was forced to pay nearly two thousand pounds for a fictitious halala marriage.
The Muslim Personal Law is an area where the Legislature has mostly left untouched. The government’s lack of intervention can be attributed to the Muslim community’s resistance to allowing secular Indian laws to regulate their personal domains. Nonetheless, in 2011, the Bharatiya Muslim Mahila Andolan (BMMA) caused a stir in the Muslim community when it wrote a letter to the head of the All India Muslim Personal Law Board highlighting the hardships faced by Muslim women as a result of “Halala.” Under the doctrine of Halala Nikah, which is based on Muslim personal law, a wife who has been the victim of “triple-talaq” is not permitted to remarry unless she first marries someone else, consummates the marriage, and then gets divorced from her second husband. The custom, which forbade the husband from ending the marriage and dismantling the family over trivial disagreements or fleeting passions, was instituted to protect the fundamental unit of the family. However, the BMMA-highlighted incidents exposed the less honourable aspects of the profession. In some situations, women were forced to halala not just once, but seven or eight times, all because their husband had said talaq when he was angry, inebriated, or had lost his job. The women claimed that they felt more like forced prostitutes who had to bear husbands for a single night in order to return to their own husbands. Organisations like BMMA have called for the outlawing of halala, but their demands have gone unanswered. The fact that “Halala service” is a booming industry these days and that there is no safeguard against the atrocities committed against women in Halala is troubling.
Prophet Muhammad introduced the idea of halala to strengthen marriages and rid them of the corrupt forms that were prevalent before Islam. In the pre-Islamic era, the wife had no legal right to divorce her spouse, but the husband had an unquestionable right to do so. The spouse might grant a divorce as many times as he wanted, and he could also revoke the decree. The Holy Quran does not contain the word “halala.” Its root word is “Halal,” which denotes that which Allah has declared to be permissible in His Book. However, “haram” refers to “that which He has forbidden.” According to the Quran, a woman who has been divorced by her husband is no longer ‘Halal’ to him and can only remarry if someone else chooses to divorce her after the marriage has been consummated. Expounding on the notion of Halala, the Holy Quran states that “if a husband divorces his wife (for the third time), he cannot remarry her until after she has married another husband and he has divorced her.” If they get back together, as long as they can maintain the boundaries that Allah has set, then neither of them is at fault in that situation. These are the boundaries that Allah has established and that He makes obvious to the aware. There are some restrictions on the adherence of Halala that have been outlined in the Holy Quran. The wife might remarry her first spouse after they consummate their marriage and file for divorce. Thus, the idea of “Halala-fixing” is categorically forbidden in Islam. A Nikah between a woman and her second husband with the understanding of a divorce thereafter will not be valid, hence a Halala cannot be planned ahead of time. Should she choose to do so, her relationship with both the second husband and the first, whom she moves in with following a prearranged Halala, will be illegitimate. Muslims use Talaq-ul-biddat and Talaq Hasan (Triple Talaq) as a divorce procedure: A husband is entitled to a divorce with higher rights than his wife under Muslim law.
According to a set of laws known as halala, a man is only permitted to remarry his first wife if he divorced her and then married her again. Making fun of Allah’s regulations is not acceptable, nor permitted, since the Messenger of Allah (PBUH) denounced those who followed halala, so rendering Allah’s commandments untrue.
Islam does not include halala. Some people have this Islamic perspective, which they claim is included in Shari’ah law. The law of the Quran states that a husband who divorces his wife for the third time in a marital contract is not entitled to her return unless he first marries someone else and then divorces the newlywed. Proceedings for prearranged marriage and divorce should not be based on this rule.
Islam does not include halala. Some people have this Islamic perspective, which they claim is included in Shari’ah law. The law of the Quran states that a husband who divorces his wife for the third time in a marital contract is not entitled to her return unless he first marries someone else and then divorces the newlywed. Proceedings for prearranged marriage and divorce should not be based on this rule. Giving titles to single women is best avoided as this leads to gendered stereotypes. Most of the time, these unequal circumstances are intolerable. The three talaqs have no bearing on a marriage because they are regarded as a single divorce under Sharia law. Together, Sunnis and Shias disagree with the positions.
A pair will stay single in this manner until their first partner weds another man. Islamic law states that once a woman has been divorced three times, her marriage cannot be reformed. This rule was passed to safeguard women’s honour and to stop an excessive amount of divorces. It is not possible to Nikah Halala her with the goal of making her lawful to her former spouse. An first spouse may remarry following a divorce. Most nations that have embraced the triple talaq use nikah halala.
Throughout his marriage, the spouse is permitted to make three talaqs. Once this happens, it cannot be undone. She can now move on with her life and be married again. It is unrelated to the wife’s recent marriage, and it is enforceable whether or not it may be reversed. This instance of “halala” cannot be settled by divorce agreement. The divorce must be arranged. If she doesn’t carry out the plan, she will wed her second spouse in violation of the law. The Prophet Muhammad (pbuh) said that people who perform halala are damnably cursed. This type of punishment was used in Hazrat Umar’s Caliphate. Islam states that a married woman’s husband is not allowed to have sex with her.
If a guy wants to remain married to his ex-wife after their divorce, he needs to get a second marriage, or nikah (Trimizi). Hanafi fiqh is widely misunderstood and is very different from the interpretation found in the Quran. The Quranic idea of halala was criticised by Muslim clerics due to inadequate study and religious bias. Undoubtedly, there is no requirement or divorce programme at the time of marriage in the legal or religious frameworks. A fresh marriage becomes acceptable if it starts with the goal of being a forever partnership but ends tragically as a result of unfavourable circumstances. A new marriage should not be formed by any unethical means; else, it would be void. It is true that women can be sexually immoral, just like males. It is probable that an individual who has been exposed to halala will eventually engage in extramarital affairs.
The equality of men and women under the law is what led to Al Nisa. This implies that women ought to be subject to the marital statute. We think that having halala gives you permission to indulge your cravings.
We took this statement to mean that marriage is a sin that is both full of hypocrisy and lacking in the authenticity of Islam.
Recall how frequently the Prophet Muhammad (PBUH) sent warnings to his disciples.
What do the Companions ask about them?
They are the ones who usually create issues, he retorted.
The author, Pir Kabir Shah Alazhari, offers several insights on this subject. From this point on, the topic of the third divorce will be discussed. If he has granted the third divorce as well, she may not marry again unless she does so in the same manner as she did with her first husband and the second husband does not file for divorce of his own free will once the marriage is consummated.
It is now quite evident from the quotes from Hazrat Umar (RA), Hazrat Uthman (RA), and Prophet Muhammad (PBUH). Halala is lost when decisions of such high esteem are rendered.
CONCLUSION
Because Muslim women in Singapore face severe forms of discrimination, this subject is extremely important. First, unfair discriminatory legislation should be repealed by the legislature in order to address the unfairness experienced by women.
Because Nikah Halala breaches women’s human rights, the Supreme Court has ruled that it is a violation of human rights. One of the petitioners’ petitions was still being heard by Chief Justice Dipak Misra and the other justices.
Muslim women are granted unique rights and benefits as citizens of India, and they are safeguarded by special state guarantees. Even yet, “Halala” is still regarded as contentious, the Hanafi School of Law upholds its legitimacy. Women’s equality and rights will be infringed if Triple Talaq is permitted. Although women who are subjected to this kind of abuse suffer greatly, they still have hope if they accept it. This has been found to be a strategy to dissuade divorce as a first step towards marriage reconciliation. The objection is unfounded since it lacks logic to support it.
A group of appeals to the Supreme Court in March 2013 asked that polygamy be prohibited and “nikah halala” declared unconstitutional. According to one of the petitioners, Nikah Halala is punishable under sections 375 and 494 of the Indian Penal Code (triple talaq) as well as as rape and polygamy. The Supreme Court issued a warning to the government on April 11 on the Triple Talaq Bill’s parliamentary procedure. Following the Supreme Court’s decision to outlaw Triple Talaq, the government introduced a measure to make the practice illegal. The Indian government is still debating the law. This measure, if passed, would make triple talaq illegal and impose fines on the spouse. Having a conversation on personal law wouldn’t end disputes amongst various Indian tribes. If the husband and wife cannot agree, then the divorce should not take place. That women who are irreversibly divorced be prohibited from getting married again is crucial. People would be reluctant to marry a divorced couple again just because they read the Quran because Islamic divorce laws are so precise. The fact that the deplorable Quranic circumvention has resulted from the unwarranted legalisation of quick talaq provides additional support for the author’s position. This is due to the fact that a supple individual is arranged to wed a divorced lady, consummate the union over night, and then file for divorce the following day in order to validate her newfound marital status with the first man. Misinterpreted religious customs that injure a defenceless woman or girl are referred to as nikah al-tahleel or halala. Even though triple talaq is performed inhumanely, nikah halala is administered in a cruel manner.
