The story so far: Sameena Begum, a Delhi-based victim of instant triple talaq and a fraud marriage approached the Supreme Court in 2018 seeking a ban on nikah halala. Following her petition, the Court issued notices to the Government of India, the National Human Rights Commission, the National Commission for Women and the National Minorities Commission. The five-judge Bench headed by Justice Indira Banerjee shall hear the case this October.
Why did Sameena Begum approach the Supreme Court?
Sameena Begum filed a PIL seeking the annulment of halala marriage and polygamy. She requested the court that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, be declared arbitrary and in violation of Articles 14, 15, 21 and 25 of the Constitution. She has also requested the court to ensure that provisions of the Indian Penal Code, 1860, apply to all Indian citizens. She contended that nikah halala is rape under IPC Section 375.
She was not alone in seeking annulment of nikah halala. With her was Farzana Parveen who used to live in Noida with her husband Abdul Qadir. Qadir pronounced triple talaq but later put a condition to accept her back: she should undergo halala marriage. Parveen refused to marry another man for the sake of getting back to Qadir. Instead, she sought judicial redress, seeking a ban on nikah halala.
The Koran allows a man to divorce his wife a maximum of two times. On both the occasions, separated by at least one menstrual cycle — instant triple talaq is not mentioned anywhere in the Koran — he is allowed to cancel the divorce, through word or action during iddah or the waiting period that follows a divorce pronouncement. If the spouses fail to resume cohabitation during this period, they are allowed to remarry without any third-party intervention. This can be done only twice. If the man takes his wife back after the second pronouncement of divorce and then divorces her for the third time, he is not allowed to marry her again. The woman becomes an independent being with full choice over her life.
Halala, the way the Koran speaks of it, empowers women to take independent decisions. It saves women from temperamental husbands who divorce in a fit of anger, then cancel it, then divorce again, unleashing an endless cycle of marriage and divorce.
The Indian reality is way removed from the scriptural injunctions. Often a man pronounces triple talaq in a fit of anger. A little later, he realises his mistake and approaches a maulana who often tells him that he has exhausted all three chances at divorce; his erstwhile wife is now prohibited to him for reconciliation unless she marries another man, and he either divorces her or dies. For the purpose of going back to the erstwhile husband, sham marriages are enacted wherein a woman marries another man with a pre-decided date and time of divorce. The nikah is conducted with the understanding that the divorce shall take place the next day after consummation of marriage. Usually, nikah halala stems from instant triple talaq and ends with it.
Is nikah halala prevalent across the globe?
In Saudi Arabia, where divorces are on the rise, no cases of halala have been reported. No case has been reported from the UAE, Kuwait and Yemen either. In India, the Muslim Women’s Protection of Rights on Marriage, passed after invalidation of triple talaq by the Supreme Court, is silent on nikah halala. The Act made instant triple talaq a criminal offence but steered clear of halala which takes place as a consequence of triple talaq. If the first husband is punished for giving her instant triple talaq, the second for doing likewise to facilitate her return to her former husband, where does that leave the woman?
