By Audrey D’Mello
Apr 5, 2018
Of late issues concerning Muslim women seem to be constantly on the boil and the personal laws of Muslims tend to get projected as patriarchal and gender-unjust. It is ironic that Muslim laws laid down in the seventh century that were progressive and far ahead of its time (rendered marriages contractual, provided for conditions to be written into the contract and granted women property rights) is now projected as the most anti-women system. Unjust practices which have no basis in the Quran tend to get projected as an integral part of Islamic law, feeding into the global framework of Islamophobia.
Seven months after declaring instant triple Talaq unconstitutional, the Supreme Court is once again called upon to examine the constitutional validity of practices such as Nikah Halala and polygamy. Admitting the petitions filed by BJP leader and advocate Ashwani Kumar Dubey and others, the court issued notices to the Centre and the Law Commission seeking their expert opinion.
While both polygamy and Nikah Halala are anti-women practices, they need to be seen separately. Here I will try to examine the context of Nikah Halala and its Quranic validity.
Contrary to popular perception, the Quran prescribes an elaborate procedure for divorce. The first time a man divorces his wife; he is entitled, without any formalities, to reunite with her during the waiting period of three lunar months. But after three months, when the divorce becomes final, the couple has a choice of entering into a fresh marriage contract, with a fresh Mehr. Subsequently, if differences crop up between them and the husband pronounces the second Talaq, he is still entitled, without any formalities, to reunite with her during her waiting period. Again, if the waiting period lapses and the divorce becomes final, the couple can contract a fresh marriage with a fresh mehr.
Thereafter, if the husband again pronounces Talaq, it becomes an irrevocable Talaq as it indicates a total breakdown of the relationship. The Quran prescribes that “if a husband divorces his wife (irrevocably), he cannot, after that, remarry 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.”
This was done to emphasise the sanctity of marriage and the enormity of ending it for frivolous reasons. This clause was meant for the protection of women, to convey that she is not a plaything or a doormat, and to save her from the humiliation at the hands of a cruel husband who torments her through constant Talaq and remarriage.
After the third pronouncement of Talaq, the divorced wife would not have to wait indefinitely for her husband to take her back. Since the marriage tie is broken permanently, she would be free to remarry. This was deemed as a punishment for the husband as she would no longer be available to him. The option of remarrying her was available only if her second marriage breaks down too, and the wife consents to reuniting with her former husband.
The presumption for this was that a couple which goes through the cumbersome long-drawn procedure of marriage-divorce-remarriage-divorce-reremarriage-divorce would not be wish to reunite again as their decision to dissolve the marriage would be a well-thought one.
The way Nikah Halala is practised is an invention by unscrupulous Qazis to circumscribe the carefully structured procedure for divorce and remarriage. When clerics ruled that even a mere utterance of the word Talaq three times, even in jest or in a drunken state, the marriage breaks down, and Halala has to be performed to absolve the man of his sin of hasty divorce.
This is purely a man-made procedure which is humiliating to women where the Qazi could mint money by arranging a temporary husband or could even step in himself as a proxy.
In the Shamim Ara ruling in 2002 and the Constitution Bench ruling of 2017, the Supreme Court has clearly invalidated the practice of instant and arbitrary triple Talaq and therefore, if the marriage exists, there is no question of performing Nikah al-Tahleel or Nikah Halala.
In the case of Nazma Biwi versus State of Odisha in 2005, 26-year-old Nazma Biwi’s husband Sheikh Sher Mohammed pronounced instant triple Talaq in an inebriated state, but later, realising his mistake, he repented and decided to continue living with his wife and three children.
It was a war between two NGOs in Bhadrak, Odisha, one supporting the couple’s right to cohabit again, and the other holding the position that the wife must perform the Halala before reuniting with her husband. Nazma Bibi flatly refused. Even the NHRC and NCW could not intervene on behalf of the couple. With the help of the NGO, they managed to escape the mobs and knock at the doors of the court. The family court gave a verdict that their marriage was valid. But since their safety was at stake, they approached the Supreme Court, which directed the Odisha government to provide police protection to the couple. “No one can force them to live separately. An impression seems to be created that mobs have a right to take the law into their hands and the police will not intervene because it is supposedly a religious matter”, ruled a bench of Justices Ruma Pal, C.K. Thakker and Markandey Katju in 2005.
The Nazma Bibi case highlights that if the woman is firm and has the support of an NGO, she does not need to bow to the pressure of the local Qazi and can continue to live with her husband. The issue of the validity of Nikah Halala has already been decided through this ruling. I wonder if the petitioners have referred to this order.
At Majlis, a legal centre for women and children which has dealt with over 50,000 cases of women facing domestic violence, we have rarely encountered cases of instant and arbitrary triple Talaq, and have never come across a single case where a woman was forced to perform Nikah Halala. The need of the hour is to spread awareness among Muslim women about their constitutional as well as Islamic rights, and not rush to the Supreme Court to challenge practices which have no validity even in Islamic law. The Supreme Court would do well to dismiss all such communally-vitiated petitions.