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INTRODUCTION

The concept of Women Empowerment and Gender Equality always remains at the forefront of every political debate but the deliberations over these topics remain hanging in the air and are not given a definite position in the mindset and social structure due to the counter by some or the other person during the discussion. Laws are made but they fall short of their effective implementation which causes them to go mainstream. Some of the practices in society have an enormous implication on the dignity of women, which often becomes the subject of ridicule at the hands of the patriarchal mindset of the masses. Why do these practices still prevail? Why is this social stigma still predominant? Every woman is entitled to the right to live with dignity, self-respect, right to equal treatment, right to choose, etc. Violence is faced by women but that doesn’t mean that it is inevitable. The role of family and society would be magnificent in aiding the vulnerable strata to achieve those pre-requisites which are essential for a decent and productive life. The various types of practices that are inhumane are prevalent in society. The practice of Nikah-Halala is one such evil practice that is a slur on the dignity of the women and a stealthy weapon of psychological and physical extortions that is caused in the name of this custom.

UNDERSTANDING THE PRACTICE OF NIKAH-HALALA

The term consists of two words – Nikah refers to “marriage” and Halala refers to “lawful”. It is a concept of Muslim personal law that means that the wife upon whom “triple talaq” has been pronounced being barred from re-marrying that person again unless she ties a nuptial knot with another person and gets a divorce from that second husband. After the divorce is granted by the second husband or the second husband dies, she has to undergo a fixed period called “iddat”. After the period of iddat, the lady can re-marry her former husband (the one who pronounced talaq in the first place). The practice was unfolded by Prophet Mohammad to ameliorate the marital relations which existed in pre-Islamic times when women didn’t have the liberty to divorce their husbands and the latter could divorce the wife as many times as he wants. The Quran stated that divorce can be granted only three times in a row after which the man cannot take his wife back. If they want to resettle, the practice of Nikah-Halala will be required to be performed by the wife. Dr. Furhan Ahmad in his work, “Understanding the Islamic Law of Divorce” said that “the prophet by the rule of irrevocability had conveyed that if the husband wishes to take back his wife, he would do so but if he doesn’t then the divorce is final after the third pronouncement. The third pronouncement is laid down as a final bar after two reconciliations.” (1)

WHY WAS THIS PRACTICE INTRODUCED?

The work “Halala” does not come from the Holy Quran. Instead, what Allah terms as lawful in his book is particularly known as “Halal”. The work “Haram” is its opposite which means “forbidden acts”. According to Quran, a woman becomes “haram” when she is divorced by her husband, and to make her pure of “halal”, it is required that she be married to some other person, and then gives her a divorce or dies after the consummation of marriage. The Quran says that if the divorce is given a third time, then he cannot remarry her unless this activity is performed by the female. By this action taking place, no one can blame either if the restitution is done through re-settlement. There are indeed some pre-requisites before performing halala. According to Quran, “Allah curses the one who marries to make a woman Halal for her husband, and the one for whom this is done (i.e., the first husband and the woman)” (2). The Halala is considered valid when it is when there is no precondition attached to marriage. Thus, the act of “Halala Fixing” is strictly proscribed. The Halala cannot be decided and planned beforehand and if it is so, then the relationship will be deemed as illegitimate. 

EFFECT ON WOMEN AND THEIR DIGNITY

The practice of Nikah- Halala is a demeaning practice that makes women sleep with another person in a transient marriage just for the sake of that unfaithful husband who has divorced the lady multiple times. These abominations need to be obliterated from the personal law books as Allah would never have thought of this practice in at least this way. Muslim women have now come to the forefront and have taken up offense against this peculiar practice which is a direct blow on women’s dignity. The practice is a word of mouth and is known by many people for namesake but they are not aware of the plight of thousands of hapless women who are being vilified in the name of nikah-halala. The Muslim activists have also noticed that halala is prone to exploitation as there are several instances where a person, when not in his conscience due to being drunk, pronounces triple talaq and later on comes to his senses. The whole process of halala ruins the woman’s mental peace, dignity and also affects the children and entire family. Law and judiciary are now their only hope which can shield them from unjust personal laws.

Image by Gerd Altmann from Pixabay 

CONSTITUTIONAL VALIDITY

The practice of nikah-halala contravenes the fundamental rights which are enshrined in Part III of the Indian Constitution. The right to equality which is given in Article 14 treats everyone as equal before the law irrespective of which gender or religion they belong to. In the Muslim religion, The rights of divorce are biased and bestowed upon husbands only but it is a fact that marriage as an institution is created with the consent of both parties and thus dissolution should also be done through an unambiguous and unconditional consent from the male and female respectively. But in nikah-halala, the woman may not even have the knowledge of the talaq being taken, but they have to face that inhumane practice and marriage and divorce. The practice is also discriminatory in nature which is prohibited under Article 15 of the constitution. Halala is a repugnant activity where women are dealt with like chattel of men who control them like puppets. Their gender makes them suffer even after the talaq has taken place. One of the most sacrosanct articles of the constitution is the right to life (Article 21) which has a very wide scope. The right to life includes the right to live with dignity and reverence which the practice prohibits. It violates the basic rights of a woman as she does not get to know why she has been given divorce and also is deprived of her rights on her children and her matrimonial house (3). The apex court of record recently held the practice of Talaq-e-biddat or popularly known as Triple Talaq as unconstitutional in the case of Sharyara Bano vs Union of India (4), now the backward counting should start for his insensitive practice of Nikah-Halala and should be outlawed. 

CONCLUSION

The self of a woman is immensely affected because of the activities like Nikah-Halala. Though, the intent behind introducing it was not malicious and was brought to shield the women from unexpected and unreasonable divorce, with time, it became a weapon of destruction of their esteem. The practice is a corollary of triple talaq which has been declared unconstitutional already in the Shayara Bano case and Halala should also be thus, barred. It is widely believed that if the law fails to withstand the test of time, then it will either throttle the society’s growth and if society has strength enough, can cause the law that stands in between to wither away. Thus, laws should keep pace with the progressing civilizations. The practices like these are widely misinterpreted to the disadvantage of some particular class and also deprive the golden rights which are given through the effect of the constitution. A bar on this activity can surely put a halt to the humiliation that is faced by the females on account of divorce being given by their husbands in a fit of anger. They may realize the mistake later but the path to reuniting is gruesome for women. An alternative way to get back into the marital bond should be introduced by the Muslim Personal Law Board keeping in mind the pride of women not being impaired. Thus, a codified law that bans this practice is the one most expected and is the need of the hour to safeguard the rights of the masses because, 

“Rights are those conditions of social life without which no man can seek, in general, to be himself at his best”.
--Harold Laski

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Reference:

  1. Astha Jain, Legality of Nikah Halala in India
  2. Priti Sharma, Nishant Pal, Transgender in India: Alimented From the Society; Human Rights International Research Journal : ISSN 2320-6942 Volume 2 Issue 1 (2014), Pg 58-61
  3. Akhil Dixit, “Nikah Halala: A Legalized Sin”
  4. Sharyara Bano vs Union, AIR 2017 9 SCC 1 (SC)
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