NATIONAL UNIVERSITY OF

STUDY AND REASRCH IN LAW,

RANCHI

FAMILY LAW RESEARCH PAPER

NIKAH HALALA: A PRACTICE PREVALENT AND A PRACTICE

CHALLENGED

SUBMITTED TO: SUBMITTED BY:

SANGITA LAHA NAME: MOHD FAHAD ANSARI
ASSISTANT PROFESSOR SEMESTER: 3
SECTION: A
ROLL NO: 1241
 TABLE OF CONTENTS

DECLARATION…………………………………………………………………….……………3
ACKNOWLEDGEMENT………………………………………………………………………...4
INTRODUCTION………………………………………………………………………….…….5
QURAN ON NIKAH HALALA…………………………………………………………….……6
ORIGIN OF THE CONCEPT OF NIKAH HALALA……………………………………….…...8
FUTURE OF “NIKAH HALALA” WILL IT STAND THE CONSTITUTIONAL TEST….….9

JUDICIAL STAND — PERSONAL LAWS V. FUNDAMENTAL RIGHTS…………………10

NIKAH HALALA: INTRINSIC PART OF RELIGION OR A DISTORTED PRACTICE……11

CONCLUSION………………………………………………………………………………….14
 DECLARATION

I, Mohammad Fahad Ansari, a third – semester B.A.L.L.B. student of National University of

Study and Research in Law Ranchi (NUSRL Ranchi), at this moment declare that the project
titled “Nikah Halala: A practice Prevalent and a Practice Challenged” under the guidance of
Sangita Laha ma’am, faculty of Family Law is an original work. I have made sincere efforts in
order to complete this project and have not misrepresented facts or data.
I declare that the statements made and the conclusion drawn are the bona fide outcome of the
research work. I further assert that, to the best of my knowledge and belief, proper references
have been given and do not contain any work that has been submitted to any university.
 ACKNOWLEDGEMENT

Firstly, I would like to thank my teacher and mentor, Sangita Laha ma’am, who showed faith in
me by providing such an excellent topic. Her constant guidance has played a vital role in the
completion of this project successfully. I express my gratitude to all the staff members and
administration of NUSRL Ranchi, for providing me such a beautiful library. Their support
cannot be expressed in words.
Finally, I would like to express my heartfelt gratitude to all those who helped me to complete this
project without any problems.

Thanking you

NAME: MOHAMMAD FAHAD ANSARI

SEMESTER: 3
SECTION: A
ROLL NUMBER: 1241
 1. INTRODUCTION

“Nikah halala is one of the most heinous practices in Islamic religion which calls for
cohabitation by the woman, who has been haphazardly divorced by the husband, with another
man, in the name of marriage, so as to make her “halal” again and enable the first husband to
remarry such divorced woman. The practice of “nikah halala” has gone through serious
distortions with each passing decade. The real purpose behind the practice of nikah halala was to
make it difficult for the impulsive man, who pronounces talaq upon his wife, to get his wife back
into the marriage. Thus, the procedure stipulated for nikah halala must be followed without any
predesign. However, fairly recent incidents have come to light unveiling the physical,
psychological and financial exploitation of women in the name of nikah halala 1. The process is
generally termed as “halala-fixing” which involves a man other than husband agreeing to marry
the woman, consummate it and then ultimately ending up in divorce. A woman becomes “halal”
and can return to her husband again only if she goes through this atrocious process.”

2. QURAN ON NIKAH HALALA

1
Rashi Gupta, Abominable Rapes in the Name of Nikah Halala: An Analytical Study of Halala with Special
Reference to Rape Laws in India, Vol. 3 IJARD 131-134 (2018).
“Marriage is a civil contract in Islam2. Both the parties have to give consent of their own free
will. The formal and binding marriage contract which outlines the rights and duties of both bride
and groom is signed in the presence of an Imam or a community elder. Quran has extensively
defined the roles which each party has to play for smooth functioning of the marriage.”

“In spite of its emphasis on marriage and its preservation, however, Islam does not rule out
dissolution of marriage as a last resort for estranged couples 3. Divorce is another name for the
dissolution of marriage. The Islamic laws mentions two types of divorce talaq al-sunnah and
talaq-ul-biddat. The former is considered to be in sync with the teachings of Prophet while latter
is considered as an innovative one.”

“Talaq al-sunnah is further divided into talaq al-ahsan and talaq al-hasan. Talaq al-ahsan is
recognized as most proper form of divorce in which the husband has to pronounce talaq in a
single sentence followed by an abstinence from indulging in sexual intercourse for three
successive months. The reason for the mass approval of this form of divorce is because it can be
revoked by the husband before the completion of three months. The other form of divorce i.e.,
talaq al-hasan involves pronouncement of word “talaq” thrice, each after a month and the talaq
stands irrevocable after the third pronouncement provided no intercourse having taken place
during the three-month period.”

“Meanwhile the second form of divorce i.e., talaq-ul-biddat which is also considered as
innovated or sinful as it involves pronouncement of “talaq” thrice in one go without observing
the waiting period unlike other two form of talaq. This form of divorce is based on Islamic
customs rather than on Quranic principles.”

“It must be noted that “nikah halala” comes into picture only when the husband has renounced
the marriage by “triple talaq” as in the case of talaq-ul-biddat and after that the Muslim woman is
required to compulsorily go through the process of halala in order to become “halal” (lawful) for
her first husband.”

2
 Mahir Haneef, Muslim Marriage is a Civil Contract, Rules High Court, The Times of India (9-6-2013, 4:40
a.m.), https://timesofindia.indiatimes.com/india/Muslim-marriage-is-a-civil-contract-rules-high-court/articleshow/
20500887.cms .
3
Zafar Iqbal Kalanauri, Marriage, Divorce and Re-marriage (Halala) in Islam,
https://www.academia.edu/23435149/MARRIAGE_DIVORCE_AND_RE-MARRIGE_HALALA_IN_ISLAM_by .
“The word nikah halala nowhere appears in the Holy Quran and thus, refers to an un-Islamic
impermanent nikah obligated upon the wife who has been a victim of reckless pronouncement of
irrevocable three divorces by her husband4.”

“However, the talaq which has been pronounced first two times could be revoked. But if it is
pronounced for the third time then the divorce becomes irrevocable.”

3. ORIGIN OF THE CONCEPT OF NIKAH HALALA

4
Rashi Gupta (Note 1).
“The word “halala” emanates from the word “halal” which means “which is considered
appropriate or permitted within the bounds of Islam.”5 Opposite to the concept of “halal” is
“haram” which means “what Allah has forbidden.” The Quran expatiate the meaning of both
“haram” and “halal” extensively. According to Quran, a woman becomes “haram” to her
husband immediately post-divorce and can only become “halal” if she marries someone else,
consummate the marriage and the person (whom she has married) decides to divorce her. The
entire procedure straightens out one thing that the procedure for making a woman halal for her
first husband should not be prefixed. The purpose being to catechize men that they cannot be
permitted to divorce their wives by pronouncement of talaq impetuously in a state of anger or
under the influence of intoxication; and if they do, it will be strenuous for them to get back their
divorced wife. A forced marriage is a form of psychological and emotional violence6.”

4. FUTURE OF “NIKAH HALALA”— WHETHER IT WILL STAND

CONSTITUTIONAL TEST

5
Gary R. Bunt, Islam in the Digital Age: E-Jihad, Online Fatwas and Cyber Islamic Environments, Vol. 39,
Middle East Studies Association Bulletin, 113-115 (2005).
6
Rashi Gupta (Note 1).
“In 2017 came a landmark judgment in Shayara Bano v. Union7 of India which ended the
decades old practice of instant triple talaq. The judgment was landmark in the sense that it gave
the Muslim women the start they needed to fight against other repressive practices in Islam.
Though the petition by Shayara Bano demanded for ban on all three practices prevalent among
Muslim families triple talaq, nikah halala and polygamy, however, Supreme Court decided to
dealt with triple talaq first and other two matters separately. In March 2018, a public interest
litigation (PIL) was filed in the Supreme Court challenging the practices of “nikah halala” and
“polygamy” and also to declare Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937 which recognizes these practices as “unconstitutional” as these practices violates the
fundamental rights of Muslim women particularly Article 14 (right to equality), Article 15
(prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and
Article 21 (right to life) of the Constitution of India. Further, the petitioner has also urged the
Supreme Court to declare the practice of “nikah halala” as rape under Section 375 of the Penal
Code, 1860 and “polygamy” as an offence under Section 494 of the Penal Code.”

“Not only halala, the Supreme Court will have a similar confrontation with the Shia sect of Islam
that regards mutaa as legitimate and allows its practice even today. Nikah mutaa as a practice
involves a man who marries a woman for a particular period of time in return for a particular
amount of money. It must be noted that mutaa was lawful in the early period of the Prophet
Muhammad till he pronounced it unlawful during the battle of Khaibar in seventh hijri or 629
AD. The majority of Muslim scholars, today, have a consensus on its unlawfulness except some
sects of Shiite.”

“The Shia sect of Islam will have a tough time justifying it in the Supreme Court given the light
of foregoing compelling arguments.”

5. JUDICIAL STAND — PERSONAL LAWS V. FUNDAMENTAL RIGHTS

“The present practice of halala is mainly concerned and arises in almost all cases whereby the
Muslim husband gives his wife instant irrevocable triple talaq in one sitting. The said practice of

7
(2017) 9 SCC 1.
triple talaq has been declared unconstitutional and violative to the fundamental rights of Muslim
women by the Court in Shayara Bano v. Union of India8. Hence by default any practice of
making an estranged and divorced wife after the incidence of cruel and illegal triple talaq from
unlawful (haram) to lawful (halal) for the same husband, if both wants to remarry themself,
through the process of nikah halala by any third person by marrying and consummating the
marriage with her is not only unconstitutional in the light of the above stated triple talaq
judgment but can also attract criminal implication under relevant provisions of the Penal Code
for forcing a women to sexual practices against her will and dignity.”

“The Bombay High Court in Sabah Adnan Sami Khan v. Adnan Sami Khan9, where the bone of
contention was whether the wife has to compulsorily go through the process of “nikah halala”
irrespective of the mode of the talaq, the Court held that:”

“Thus, in our opinion, where talaq becomes irrevocable through any mode between the parties,
for remarriage between them, it is not necessary that the halala must be observed. In other words,
merely because a talaq has become irrevocable, does not mean that in case of every irrevocable
talaq, irrespective of its mode, for remarriage between the same couple, it is necessary that the
halala formality must be complied with by the wife 10. Hence, it can be comfortably argued that
courts have also taken the view that call for the abolishment of this practice as it is repressive and
violative of fundamental rights of Muslim women.”

6. NIKAH HALALA — AN INTRINSIC PART OF THE RELIGION OR A

DISTORTED PRACTICE

“The Supreme Court in John Vallamattom v. Union of India11, held in para 44 that laws dealing
with marriage and succession are not part of religion. Further in paras 30 to 32 it provides that

8
Ibid.
9
 2010 SCC OnLine Bom 446.

10
Id.
11
 (2003) 6 SCC 611.
law cannot remain insulated from the changing dynamics of the society and has to change with
time.”

“Further, Supreme Court in  Khursheed Ahmad Khan v. State of U.P12. held that what is
permitted or not prohibited by a religion does not become a religious practice or a positive tenet
of a religion. A practice does not acquire the sanction of religion simply because it is permitted.
The Supreme Court very clearly elucidated that only the essential parts or practices of a religion
are guaranteed protection under Articles 25 and 26 of the Constitution. Now, the question arises
is what constitutes or meant by essential parts and practices of a religion?”

“The Supreme Court answered this question in Commr. of Police v. Acharya

Jagadishwarananda Avadhuta13. According to the Court:”

“9. … Essential part of a religion means the core beliefs upon which a religion is founded.
Essential practice means those practices that are fundamental to follow a religious belief. It is
upon the cornerstone of essential parts or practices that the superstructure of a religion is
built, without which a religion will be no religion. Test to determine whether a part or
practice is essential to a religion is to find out whether the nature of the religion will be
changed without that part or practice. If the taking away of that part or practice could result
in a fundamental change in the character of that religion or in its belief, then such part could
be treated as an essential or integral part. There cannot be additions or subtractions to such
part because it is the very essence of that religion and alterations will change its fundamental
character. It is such permanent essential parts which are protected by the Constitution.
Nobody can say that an essential part or practice of one's religion has changed from a
particular date or by an event. Such alterable parts or practices are definitely not the “core” of
religion whereupon the belief is based and religion is founded upon. They could only be
treated as mere embellishments to the non-essential (sic essential) part or practices. 14”

“Applying this aforesaid test, it is clear that the practice of “nikah halala” does not constitute an
integral part of the Islamic religion and an end to this practice will not change the fundamental
nature of Islam.”

12
 (2015) 8 SCC 439.
13
 (2004) 12 SCC 770.
14
Id, pg. 782-783.
“However, the All-India Muslim Personal Law Board (AIMPLB which is one of the parties in
this case has relied upon State of Bombay v. Narasu Appa Mali15 where the Division Bench of
Bombay High Court held that “there can be no doubt that both the personal laws cannot be said
to have been passed or made by a legislature or other competent authority and do not fall within
the purview of the expression ‘laws in force’”. The Court observed that personal
laws not being part of Article 13 could not be struck down by the courts even if they are found to
be violating fundamental rights. The Court decided that personal laws are outside the ambit of
judicial scrutiny. The Narasu Appa Mali judgment16 was later upheld by a Supreme Court Bench
in Shri Krishna Singh v. Mathura Ahir17.”

“Then came a judgment of Supreme Court in 1996 where it seemed as if the Court had overruled
the Narasu rationale18, since it observed that personal laws would be struck down if they violated
any of the fundamental rights guaranteed by the Constitution (C. Masilamani Mudaliar v. Idol
of Sri Swaminathaswami Thirukoil19). But, in fact within one year of C.M.
Mudaliar judgment20 the Supreme Court once again upheld
the Narasu  rationale21 in Ahmedabad Women Action Group  v.  Union of India22 and dismissed a
petition challenging various provisions of Hindu, Muslim and Christian personal laws.”

 “It was the Narasu judgment23 which gave birth to this uncertainty that whether constitutional
ideals such as equality, non-discrimination and dignity could be applied in cases of personal laws
as well. However, the Supreme Court after Shayara Bano24 made it crystal clear that personal
laws could be declared void and struck down in case, they violate fundamental rights of those
guaranteed. Henceforth, the Narasu judgment25 holds no importance in this case.”

15
 1951 SCC OnLine Bom 72.
16
Id.
17
(1981) 3 SCC 689.
18
Supra note 15.
19
 (1996) 8 SCC 525.
20
Id.
21
Supra note 15.
22
(1997) 3 SCC 573.
23
Supra note 15.
24
 (2017) 9 SCC 1.
25
Supra note 15.
“Keeping in mind the abovementioned judgments and also the liberal approach taken by
Supreme Court in recent case (instant triple talaq, privacy judgment and review of Section 377)
the odds of survival of this practice is very less.”

7. CONCLUSION

“The dreadful stitch of halala which is the abominable corollary of triple talaq has already been
declared unconstitutional (being violative of the fundamental right guaranteed under Article 14
of the Constitution) by the Supreme Court of India in Shayara Bano  v.  Union of India26. After
the remarkable victory by the Bharatiya Muslim Mahila Andolan against instant triple talaq in

26
Supra note 24.
the Court, they are now ready with its draft of “Muslim Family Law, 2017”, which, if debated
and enacted by Parliament, would bring an end to the unconstitutional act of polygamy, too27.”

“Without any doubt it can be claimed that the practice of nikah halala is degrading and
humiliating to the status of women. It cannot be denied that the practice was introduced with an
intention to safeguard the rights of women in a marriage and to save her from arbitrary and
haphazard divorce, however, the practice has not been able to serve the intent. One such reason
for this failure is the unwritten or uncodified laws in Muslims because of which the practice has
been grossly misused by Muslim men. The practice has now become obsolete and redundant in
the 21st century where nations are giving rights to refugees, LGBT community, right to vote to
women and many more. Therefore, a ban on this humiliating practice must be imposed using a
codified law in order to collar out the despondency faced by women in the name of nikah
halala.”

27
Zakiasoman, Bharatiya Muslim Mahila Andolan Seeks Comments of Concerned Citizens
on the Draft of the Proposed Muslim Family Law, BMMAINDIA (8-9-2017), available at
https://bmmaindia.com/2017/09/08/bharatiya-Muslim-mahila- andolan-seeks-comments-of-concerned-citizens-on-
the- draft-of-the-proposed-Muslim-family-law/ .