As the Supreme Court considers banning nikah-halala, a look at the contentious form of marriage

Halala, in the religious book, is a chance given to an irrevocably divorced couple to come back in matrimony, if so desired mutually. The Quran makes two divorces revocable. Within the three-month iddat period, a man can cancel the divorce through the spoken word, or by establishing physical relations. If, however, he fails to do either within the iddat period, but has a change of heart after that, he may enter into a fresh nikah. The wife is not required to marry another man first. The two can become husband and wife again with a fresh nikah and mahr. This can be done immediately at the end of the iddat period, or any time in the future as long as the woman does not marry another man.

However, in case the first divorce is revoked, but the man pronounces divorce for the second time, then the same proceedings have to be repeated. He can, once again, revoke divorce through word or intimacy. Failing to do either within the waiting period would mean that the marriage is over. Again, after the iddat period, if he wants his wife back, and she too is willing, they can have a nikah without any third-party involvement.

If, however, he pronounces divorce for the third time, she becomes a completely independent woman, totally prohibited for her erstwhile husband. At the conclusion of her iddat period, she is free to do whatever she would like to. She may choose to marry another man or stay single. In case she marries another man and he dies, or he pronounces divorce according to the procedure accepted in Islam, then she enters the iddat period again. This time, she is the widow or divorcee of the second husband. At the conclusion of the iddat period, she is once again an independent woman. Now, if she feels that instead of choosing a third partner, she would rather go back to her first husband through a new nikah, she is allowed to do so, provided the husband is willing too. Now, she is halal for him. It is this concept of a woman’s independence in Islam which has been made a mockery of by ignoramuses.

The way it often pans out is, if a woman has had an irrevocable (instant triple talaq is considered irrevocable by some) divorce and expresses a desire to go back to her husband, a local maulana suggests halala – that is, she marries another man, obtains a divorce, completes her iddat period, and then marries her first husband again.

Since it is almost impossible to find a man who would assuredly divorce the woman, often, local clerics offer their services. Under this, a nikah is conducted between the cleric and the girl, with the clear understanding of divorce the next day or a few days later.

The whole exercise is hush-hush, unlike the way suggested in Islam, where a man is asked to throw a reception after the nikah so that nobody can cast aspersions on the integrity of the woman in the future. In such a twisted form of halala, everything is done under the cover of night, with barely any witnesses. It is almost like legalised prostitution. As the All India Muslim Personal Law Board (AIMPLB) submitted before the court:

[There are] unequivocal and unambiguous Hadiths of the Prophet Muhammad (PBUH) where mock marriages and mock divorces are reported to be a cause of curse from the Almighty Allah. It is in the said Hadiths that the reference to the term Halala is found, though it is not mentioned in the Noble Quran. Whereas in any case, the term “Nikah Halala” is not found even in [the] Hadith. The Hadiths of the Prophet Muhammad (Peace Be upon Him) in condemning Halala are as follows: “Allah’s curse is on the one who makes a contract or agreement for Halala (Both the one who carries out Halala and the one who it is done for” (Sunan al Darami/Mishkat al Masabih), and “Allah has cursed the muhallil (one who marries a woman and divorces her so that she can go back to her first husband) and the muhallal lahu (first husband)“.

Simply put, such a wedding has no Islamic sanction. It is akin to taking a bull on hire, as is done in rural areas to enable cows to procreate. Except in this form of marriage, there is no procreation, just recreation for the man and humiliation for the woman, who ends up suffering in multiple ways because of her husband’s temper.

This goes against the letter and spirit of verse 230 of Surah Baqarah, which states:

And if a husband divorces his wife (a third time), then he cannot, after that, re-marry her until after she has married another husband and he has divorced her. In that case, there is no blame on either of them if they reunite provided they feel that they can keep the limits set forth by Allah. Such are the limits set by Allah, which He makes plain to those who understand.

This verse has to be seen against the backdrop of the atmosphere then prevalent in the Arab world. Many men were prone to divorcing their women, then taking them back, and divorcing them again. It had become a game. This process went on innumerable times. The Quran put a limit to this: a man could only divorce his wife two times. If he did so for the third time, he could not have her back, and she was free to marry any man she chose. Only a handful of legal experts have understood the halala provision in letter and spirit. It is meant to empower a woman.

Today, the way halala is used defeats the purpose of the restriction. Any nikah with a pre-agreed date and time of divorce is not allowed in Islam.

It is like muta, a short-term marriage, which again is frowned upon. Marriage is a bond that can be ended only under exceptional circumstances. A woman is not a plaything to be enjoyed at night, discarded in the morning and sent back to her former husband. Yet, the way this provision is violated in our society can enrage the calmest of persons. Worse, its mischievous misinterpretation is foisted on women already reeling under the after-effects of instant triple talaq. The victims are always women, more in rural areas than urban, and the execution of the halala is starkly similar. A man pronounces divorce in a fit of rage. A little later, once his anger subsides, he realises his folly and approaches a local cleric for a way out. The husband now wants to reconcile. She too is willing, the argument often being that he did not mean triple talaq, only a single, revocable divorce. Or that he was not in his senses when he pronounced the three dreaded words. Yet, when the maulana is consulted, he hardly ever rules that instant triple talaq given in one go without following the procedure prescribed in the Quran is only a single, revocable divorce. Instead of doing what the Prophet did when faced with such a situation – the Prophet allowed a man who had divorced his wife in this manner to go back to her if he so desired, thus giving him a chance to resume his marriage – most maulanas never ask the couple if they would like to resume their marriage. They simply consider instant triple talaq a valid, irrevocable divorce, though they refer to it as talaq-e-biddat or sinful divorce. It stands to reason: if something is sinful, how can it be allowed by a scripture? And if it is not allowed by the Quran, how can it be valid? Even the prevalent practice of halala is not supported by the Quran.

Excerpted with permission from Till Talaq Do Us Part: Understanding Talaq, Triple Talaq and Khula, Ziya Us Salam, Penguin Random House India.