Online Legal Advice from Insaaf99® Online Lawyer Consultation in India
Online Legal Advice from Insaaf99® Online Lawyer Consultation in India
Nikah Halala is one of the most controversial subjects in India. The roots of the controversy surrounding this practice lie in interpretations of Islamic law, which have engendered reckoning, social activism and religious discourse across contemporary India. As judges, politicians and religious leaders grapple with questions of constitutional rights, gender equity and religious freedom it's crucial to grasp Nikah Halala to have a real talk about changing laws and moving society forward.
In this article we will take a look at how the big court cases have put this practice under the constitutional microscope.
Some of the interpretations of Islamic law state that in case of triple talaq Nikah Halala would come into the picture. So if a husband divorced his wife by saying talaq three times, he cannot marry that woman immediately. According to this interpretation of law, if the two want to reconcile and marry again, the wife has to perform certain rituals.
• Complete her waiting period after divorce which is also known as iddat
• Wed a new spouse (a real life marriage, not just for show)
• Have intimate relations in this new marriage
• Get divorced from the new spouse or become a widow
• Go through another waiting period (Iddat)
• At this point, she can tie the knot again with her first husband
"Halala" means "to make something lawful" in language. In this case, it talks about how to allow remarriage to the first husband after a final divorce.
Also Read: - 7 Important Points On will in Muslim Law
There are different views about Nabi Muhammad’s life that some followers and historians look at in detail, while others do not and focus on more generalized notions. Nikah Halala has its roots in people’s interpretations of certain verses in the Quran. One such verse is Surah Al-Baqarah (2:230) which explains that a husband cannot return to his wife afterwards unless she gets married to another man and the new marriage must also end.
Experts on Islam believe that this particular translation does more to explain the reason behind the divorce rather than try to help the couple get back together. There are fābles that the Prophet Muhammad disapproved of the misinterpretations of this law when a wife describes her husband as a borrowed bull.
Today’s Islamic scholars hold varying opinions on the subject:
The Conservative View: Some scholars argue that the procedure called Nikah Halala needs to be performed after a triple talaq has occurred. They make it clear that it needs to be an authentic marriage rather than a sham divorce.
Progressive Opinion: A vast number of current scholars in this day and age and the not-so-distant past have completely dismissed this as custom. In their eyes, it distorts Islam and the Quran.
Theological Criticism: For more and more Muslim intellectuals, arranged or casual Halala seems to be equivalent to openly legitimized sexual exploitation. In their eyes, this is damaging to women’s self-esteem and rights.
Islamic reformers often point to countries like Tunisia and Morocco as examples. These nations have changed their family laws to ban such practices while staying true to Islamic principles. They claim the Quran's original aim was to make divorce a big deal with consequences, not to set up a way for reconciliation through someone else.
Nikah Halala has a tricky legal standing in India. Here's how things stand now:
Not Outlawed
Triple talaq got ousted with the whole "against the law" thing in the Muslim Women (Protection of Rights on Marriage) Act, 2019, but the same has not been done for Nikah Halala in India as of now. This practice is still very much prevalent under Muslim personal law, which plays by the rules of religious writings and traditions, not stuff written down in official law books.
Constitutional Face-offs
People have taken Nikah Halala to the Supreme Court throwing a bunch of reasons at it to see if any stick:
Article 14: Breaking the right to be equal in the eyes of the law
Article 15: Biased actions based on someone's gender
Article 21: Attack on the right to live and be free, which covers respect for oneself
Article 25: If a custom is crucial to a faith and therefore gets protection due to freedom of religion
Right now, India's Supreme Court has a pile of cases on its plate. These cases are all poking at whether Nikah Halala practice is valid in the constitution or not. This issue was raised along with Triple Talaq earlier, while the issue of Triple Talaq got sorted in 2017. However, the issue of Nikaah Halala was put on hold as the judiciary wanted to take a look at this practice separately.
Here Are Some Major Cases Like:
Sameena Begum v. Union of India and others (2018): Sameena Begum stood up to say Nikah Halala is like sexual abuse and rape if it's forced on someone.
Ashwini Kumar Upadhyay v. Union of India: A lawyer and politician took action asking for Nikah Halala to be recognized as against the constitution and basic human rights.
Nafisa Khan v. Union of India: Nafisa Khan also filed a legal challenge arguing the practice disrespects women's honor and goes against what's promised in the constitution.
The Supreme Court sent notices to the Central Government seeking their response to these challenges. The government shows signs of agreement with those contesting recognizing that Nikah Halala clashes with fundamental rights. Yet official legislation remains in development.
The Supreme Court's examination of Nikah Halala dates back to the landmark Shayara Bano v. Union of India case of 2017. In a split decision, with a tally of 3 against 2, the justices declared instant triple talaq invalid concluding it conflicted with the Constitution. This laid the groundwork for scrutinizing religious practices in the light of human rights.
Court cases involving Halala are on hold, and it looks like the judges are digging into some pretty tricky issues.
Religious Musts: Does Nikah Halala fall into the must have category for Muslims safeguarded by Article 25?
Constitutional Ethics: Does this custom go well with the constitution's core beliefs and standards?
Equal Rights for Ladies: Are we looking at a situation where women's rights to fairness, dignity, and liberty get the short end of the stick?
The honorable court made it clear; that such practices can't hide behind religion to deny women an equal spot. Like Justice D.Y. Chandrachud said when looking at triple talaq, "The Constitution's not okay with dropping its values for religion."
The judges listening to the Nikah Halala cases raised issues about how it messes with women's independence and respect. In 2018, while sending the notice about the cases, Chief Justice Ranjan Gogoi said the court would check if this practice matches India's constitutional spirit.
Advocates for leaving religious affairs out of the courtroom argue:
• Religious communities ought to adjust their own rules without the court telling them to do it.
• Groups that are in the minority ought to have the authority over their own legal matters keeping external interference at bay.
• Grasping the variance between religious instruction and individual interpretation is essential.
The constitution permits religious freedom which means the government ought to lay off implementing too many controls on spiritual matters.
Religious experts reckon the issue isn't the idea. It's how the people are messing it up. Genuine "Halala" should just happen. It shouldn't be something people set up ahead of time. They believe we shouldn't just ban it.
Also Read: - Muslim Personal Law in India: Understanding Marriage, Divorce, Inheritance, and Guardianship
Uniform Civil Code can resolve this issue by bringing in the same rule for everyone, no matter what their faith is. Some people are worried about forcing this law for everyone to be the same and not respecting minority groups' rights.
Is Nikah Halala banned in India?
No. Nikah Halala has not been banned through legislation in India.
What is the case of Nikah Halala in the Supreme Court?
The Supreme Court is currently hearing multiple petitions challenging Nikah Halala's constitutionality. These petitions argue that the practice violates Articles 14, 15, and 21 of the Constitution. The Court has issued notices to the Central Government seeking its response, and the government has indicated support for the petitioners' stance, but a final decision is pending.
The issue related to Nikah Halala is very complex as it is a mix of faith, legal issues, and rights for women, and big rules in India's mixed-up social scene. At the moment it has not been declared illegal, but there are some major concerns which are being discussed in the Supreme Court, and what they decide could change the rules of the game.
The fight in court shows the big tug-of-war between doing your own religious thing and having personal freedoms, old-school ways and the new world, who you are in your community versus the big national rules. As India keeps going as a mixed-faith democracy that's fair to everyone, figuring this out needs some serious thinking, caring about what smaller groups think, and sticking hard to the big rules about being equal and respected.
