People develop opinions about social phenomena largely through the media. The perception regarding Nikah Halala is that it is an abominable practice sanctioned by Islam in which it is mandatory for a divorced woman to consummate the marriage with another man and then get divorce from him before remarrying her previous husband. The immediate implication of this understanding results in reinforcing the stereotype that Islam is a misogynistic religion that is exploitive of women. Adding fuel to fire are the various sting operations carried out time and again by some TV channels exposing how some Muslims have developed a racket to offer their services to arrange these “halala marriages” wherein they agree to sleep with these divorced Muslim women (like a one night stand) for a nominal fee and subsequently divorce them enabling their remarriage with their original husbands. All quite appalling, revolting and naturally triggering a backlash from victims of these halala marriages.
A MISNOMER
To me, this term “Nikah Halala” is a misnomer. It immediately develops the completely wrong notion that it is a religiously approved practice (described above) to qualify a divorced Muslim woman to re-marry her former husband. But the reality is quite the opposite. In Islam there is nothing like Nikah Halala. It is a perversion and something akin to blasphemy against the noble and holy act of marriage in Islam. Hence this term should be avoided. We must coin other words to describe this illegal and accursed practice like “pseudo nikah”, “faux nikah” or “mock wedding”. This will alert the general populace regarding the illegality or illegitimacy of this practice.
You will appreciate the merit of this suggestion if you read the media headlines regarding the opinion of the All India Muslim Personal Law Board (AIMPLB) regarding these pseudo marriages. On 17th July the Times of India came with a news item flashing the following headline: “AIMPLB against outlawing of ‘nikah halala’, but wants it to be discouraged”. The misunderstanding created by this misnomer is further compounded when you read in the same news story the reaction of the Secretary of the Board who says: “Nikah halala cannot be challenged… this is as per the Qur’an and the board cannot have a different opinion.” While the AIMPLB representative was referring to the correct position of the Qur’an regarding a situation that may develop in the life of a divorced couple; the media is lapping it up as if the Board supports the “dreaded” Nikah Halala and is using Islam to justify its alleged misogynistic posture.
ISLAMIC POSITION
A prominent and reputed Islamic portal that gives replies to common questions about Islam and Islamic practice (https://islamqa.info/en/109245) while answering a question on whether it is permissible to marry a divorced lady with an intention to divorce her later so she can return to her previous husband, had the following to say: The Qur’an says in Surah Baqara 2:230 – “If a man divorces his wife for the third time, then she is not permissible for him to marry until she has married another man, because Allah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband”. It is stipulated that this marriage which will make her permissible for her first husband should be a valid marriage. Temporary marriage (mut’ah marriage) or marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage) are both haram and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband. In the Hadith collection of Imam Abu Dawood (2076) it is stated that the Prophet (peace and blessings of Allah be to him) said: “Allah has cursed the muhallil and the muhallallahu”. The muhallil is the one who marries a woman and divorces her so that she can go back to her first husband, and the muhallallahu is the first husband. Al-Haakim narrated from Naafi’ that a man said to Ibn ‘Umar: I married a woman and made her permissible for her first husband, and he did not tell me to do that and he did not know. Ibn Umar said: “Marriage should be based on genuine intentions; if you like her then keep her, and if you do not like her then leave her.” He said: “At the time of the Messenger of Allah (peace and blessings of Allah be to him) we would regard that as zina. And he said: They will still be adulterers, even if they remain for twenty years. Based on that, it is not permissible for you to marry this woman if you intend thereby to make her permissible for her first husband. Doing that is a major sin, and the marriage will not be valid, rather it is zina (fornication) Allah forbid.
The above answer regarding Islamic position on these “fake nikahs” cannot get more unequivocal, unambiguous and explicit. We now need to counter the false propaganda on Nikah Halala with the above.
WHY IS SC/ST ACT DEBATE CORRELATED TO “MOCK MARRIAGES”
The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes. Recently the Supreme Court of India passed some directives on some of its provisions which were being abused by some to carry out their personal vendetta. To counter the Apex Court and under pressure from the Dalit groups the Lok Sabha passed an Amendment to the Act. But the interesting thing in this episode is the statement of Minister of Social Justice and Empowerment Thaawar Chand Gehlot who accepted that 6-7 per cent cases under the Indian Penal Code and 10-12 per cent cases under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act were misused.
“But citing the misuse of the Act, we can’t allow 88 per cent of Dalits to suffer,” Gehlot asserted. In an article in the Tribune NALSAR University of Law Vice Chancellor Faizan Mustafa writes: “Most liberal scholars are against halala which they argue is an un-Islamic practice. Here again, Shayara Bano is not a victim of halala. The BMMA case study mentions just two cases out of 117 where respondents said that ‘they were asked to undergo halala’ – i.e. marriage to a second husband before they can return to the first. The weakness of their questionnaire becomes evident as there was no follow-up question on who asked them to undergo halala. In the second study as well, they found 1.6 % of women underwent halala. Thus, a massive majority of 85.52% of the divorcees were not subjected to halala. Again, the BMMA study does not tell us why these women went back to their husbands who were not giving them maintenance even during subsistence of the marriage”.
Thus we can conclude that the number of these sham and mock marriages among Muslims (Nikah Halala) is almost negligible and hence any new law that prohibits the correct and approved Islamic provision of a certain process for divorced spouses to remarry is not only unnecessary but would be a travesty of justice.
RESPONSIBILITY OF THE MILLAT
Muslims in India have a special responsibility laid out by Islam. It is their duty to present the teachings of Islam to their non-Muslim brothers and sisters. They must follow and practice Islamic principles in letter and spirit. The Islamic concept of marriage, divorce and family system is so natural, logical and scientific that anybody with an open and unbiased mind will definitely attest to its pristine and infallible nature. It is the duty of the Islamic scholars, religious organisations and the Personal Law Board to educate the Muslim Millat on how to follow the Shariat in matters of marriage, divorce and inheritance. The objections and opposition to various practices of the Muslim Personal Law can be reduced if Muslims become role-models of Islam and clear the misconceptions regarding many Personal Law related issues like Nikah Halala. It is not an easy task but must be undertaken without any delay.