Rape under the Veil of Marriage: An Enquiry into the Practice of Nikah Halala and its Relevance in Present India

Marriage in Islam, is a legal contract between the bride and the groom in free will to take up the social responsibilities of a nuptial bond. The term “Nikah Halala” is not present in the Holy Quran and refers to an impermanent Nikah forced upon the wife, who has been a victim of reckless pronouncement of talaq by her husband². If talaq is pronounced twice, it may be withdrawn but in the progress, if talaq is pronounced thrice continuously it is irrevocable.³ The divorce makes the wife haram (impure) for her husband whereas she is halal (pure) to other men after completion of her Iddat. The Nikah halala is designed to make her halal for her husband (the first husband).⁴ Nikah Halala is a practice followed by some in the Muslim community, that stipulates divorced wife can only be allowed to remarry her first husband if she voluntarily consents to marry a third person, consummates their relationship and then the man divorces her.⁵

The word ‘Halala’ comes from the word ‘Halal’ which means ‘appropriate or ‘permitted within the bounds of Islam.’ Antithetical to the concept of ‘Halal’ is ‘Haram’ which means ‘what Allah has forbidden’.⁶ Jurist Maulana Ashraf Ali Thanvi illustrating the work of ‘Bahishti Zewar’ noted that if the husband and wife intended to re-marry for the second time, it is to be done only on one condition, i.e through a strainious process of halala. If post halala marriage, the husband dies or divorces the woman after sexual intercourse, the woman is free from the marital bond tied-in to purify her or make her halal, and post the completion of the Iddat period, she can remarry anyone even her first husband. But, if the second husband unfortunately dies or divorces her before having a sexual relationship, then the newly bonded marital relation isn’t considered to make her halal, making her still impure(haram) for her first husband barring her from marring her first husband in such circumstances.”⁷ If we dig deeper into the idea which lead to the formation of such a practice in Arab peninsula during the times of the Prophet. We would acknowledge that the purpose of such a custom was not to demean the authority of women but to tame the male domination in the society and to preach men that they cannot divorce their wives by the mere pronouncement of talaq in a state of anger or under the influence of intoxication, and if they do so, it is strenuous for them to get back their divorced wife.

Mounting fanatism and traditionalism, deprives humans of their rights in many area of Islamic law.⁸ Therefore, questions on the misuse of nikah-e-halala and its comparative analysis with that of the offence of rape under Indian penal code has gained importance in recent times. The practice of halala is considered as extremely heinous and offensive to the honour of both the man and his woman. The way in which this practice has been constructed in the contemporary situation is nothing but a glimpse at the Islamic cleric’s act to rape, misquoting in the name of religion. Patriarchy reshapes and reinterprets religion in favours its dominance over others.⁹ From ages, customs and religion have been deformed to exercise control and dominion over women to force them to conform with the patriarchal needs of every society.¹⁰ But a major point in Islamic jurisprudence is that nikah halala cannot be pre planned. The Prophet has cursed both such men who perform Halala and for whom Halala is performed.¹¹ The second Caliph Hazrat Umar had ruled that people who involved into a pre-planned halala would be stoned to death under his reign.¹² The act of halala has currently turned into a million dollar industry which institutionalizes the degradation of women in the garb of religion. Indeed, it is somewhat distortion of the religion too. If the former husband post pronouncement of irrevocable talaq, realises his mistake of abandoning his wife and is allowed to stage a second marriage of his divorced wife solely to legitimize his remarriage with her in a pre-planned way. The idea of a staged ‘Halala’ is completely antithetical to as refered in Holy Quran as it reduces a women to a piece of amusement who can be deserted just through utterances of the word Talaq and can be traded back after a one-night stand with some stranger sifted out specifically for this purpose.¹³ It is difficult to ascertain what a woman goes through emotionally, spiritually and physically in such a scenario. Even the Caliph Omar and Abdullah bin Omar regarded such marriages as adultery. In fact, such marriages have also been denounced by the Prophet: “Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.”¹⁴

The offence of manipulating a woman to cohabit with a stranger in order to get back her husband in name to religion has demeaned the practice of Nikah Halala and placed it in equal footing with that of the offence of rape as defined under Section 375 of the Indian Penal Code, (1860). The definition of the offence of Rape under IPC, elaborates any at of sexual advances ‘without her consent’ as one of the circumstances under which the act of penetration by the male is made punishable under the offence of Rape¹⁵. It explains the term ‘consent’ as an unequivocal voluntary agreement where the willingness of the female to participate in the specific sexual act is clearly expressed. The judicial interpretations over years have moulded the definition of rape to discards the proof of absence of physical opposition by the female to the act of penetration as a test to determine consent or voluntariness of the female to engage into the sexual act. Though the definition of rape, provides marital relations as an exception if the wife is major.¹⁶ But time and again, the court interpreting the term free consent, has prosecuted the alleged husbands where they tried to mutilate the dignity of women through malified intentions. It has been unveiled by various instances that there runs a cleric circle of Islamic schoolers who manipulate Muslim couples into the Halala services in exchange of a fixed amount of money in a pre -planned way offered by them against the principles enshrined in the Holy Quran.¹⁷ Thus, misquoting in name of religion to satisfy their own physical and monetary lust. This negates the fundamental principle of Shariya law as well as posing serious question on the consent obtained from the woman under the guidelines of Section 375 (i),(ii), (iii) and (iv) of Indian Penal Code.

Criminologist and psychologist have jointly concluded rape forced upon a women in a wedlock by her husband is also equally degrading and demeaning to womanhood as it would have been if by a stranger and should be treated at per with the offence of rape. Paul Harvey Wallace and Routledge in one of their research explored the mental trauma and conditions of victims recovering from horrifying incidents of forceful physical lust pushed upon them by their husbands¹⁸. They classified the incidents of crime in two major forms¹⁹:

1. Cases where the husband only uses force to enter into sexual intercourse with his wife

2. Cases involving other sexually perverted act in addition to the act of rape such as a unethical or unnatural demand of sexual nature from her or a request to involve in sexual acts with strangers.

Initially, the judiciary too found itself in a tussle over the topic of judicial expansion and limitations over the definition of forced sexual intercourse qualifying as the act of rape in the case of RTI Foundation Vs. Union of India ²⁰ The court was of view that merely repelling the Exception 2 from the definition of Section 375 will hardly solve any purpose becaue if it is done so, all sexual acts by the husbands towards their wife would qualify to be marital rape and the test to if it was forced upon her and weather it can be criminalized would singly rest upon the wife, which leaves immense scope of ambiguity and misuse of the law. In the case of Bishnudayal vs Union of India ²¹ the victim girl was sent to her elder sister’s home to aid her sister and her in laws for some time. During her stay their she was forcefully married to a person in exchange of liquid cash and was forced to consummate such marriage. The court held the marriage to be void ab initio and even though she was married held the heinous act to be rape under Section 375 of IPC pointing at the definition of consent which includes free will as a pivotal compass to determine the decree. The court for the first time classified the difference between will full submission and in capability to resistance or passive acceptance in the Mathura rape case²². In another Rao Harnam Singh, Sheoji Singh v. State,²³ the defence tried to proof that the victim being a major has willingly given herself to satisfy the carnal lust of the accused and his guests on the eve of a party which was arranged on the occasion of transfer of Deputy Superintendent of Gurgaon Jail in the presence of her husband. It was pointed by the prosecution that the girl protested vehemently against this outrageous demand, but was induced to surrender under the force of her husband. The court took cognisance of this and refuted the defence contention of the girl being a consenting party, holding the accused liable for the offence of rape. The court in this case distinguished between the terms ‘consent’ and ‘submission’ stating “a mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, passive giving in, when the immediate action is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law.”²⁴ Submission of one’s body under the influence of fear or terror is no consent. Although each consent involves a submission, but the opposite never happens the mere act of submission does not necessarily involve consent²⁵.

In case of Nikah halala, it is generally the man who after his divorce repents his reckless act of pronouncing talaq and with the clerics, pushes his wife into the degrading act of nikah halala, who has no other option under the patriarchal set up of the society, but to give a “yes” nod. The passive acquiescence by the female when she is not in a position to rationally gauge the fore-framed practice of Nikah Halala, but still becomes a part of it barely to return to her first husband desperately, can only be designated as ‘submission’ and not ‘consent’, which must not be proved as a defence to the allegation of Rape. Besides the perceived notion of earning bad name to herself and her family, she is forced to mould herself into selling her dignity for her family, not in a free will but merely because of societal ties.

Islam, one of the greatest religions in world. Through the centuries of existence, it is by far the most misunderstood and misrepresented religion. For the sheer ignorance of its followers, the practice of Nikah Halala has been widely misinterpreted. Due to improper codification of Muslim law the divorced Muslim woman is exploited and forced to undergo the degraded process of marriage with a stranger for a night to legitimise her remarriage with her first husband. And in this case, Muslim clerics enjoy the benifit out of it. The traumatic stitch of Halala is an disgusting follow up of triple talaq which 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 India.²⁶ As awful as it may sound, but reports shows a number of religious scholars in India have been offering themselves up for a one-night stand by manipulating the divorced the divorced couple who desperate to save their marriages fall their prey under a disputable Islamic law. Such religious scholars who are exploiting woman in the name of misconstrued religious practice of halala have been found charging between Rs 20,000 and Rs 1.5 lakh to participate in Nikah Halala.²⁷ Reports also show that there are online services to help Muslim couples to enter into halala marriages to get back together with husbands who divorced them.²⁸.In an awful case in Bareilly, Uttar Pradesh a woman was forced to sleep with her father-in-law to purify her for her husband and facilitate her remarriage to her first husband. But the woman's misery did not end here. Her husband again pronounced talaq against her after the remarriage and this time was again forced to consummate her marriage with her brother-in-law to remarry her first husband again²⁹

If the veil off the Nikah Halala is lifted, a rude satanic practice will be revealed which is primarily designed to exploit women physically in the name of religion. After winning a hard battle against instant triple talaq, the Bhartiya Muslim Mahila Andolan³⁰ (an autonomous secular NGO) has drafted a small draft of Muslim family law which if implemented would mark an end to the heinous acts of polygamy and Nikah Halala. A committee formed by retired Justice V.N Verma has come out with suggestions which includes ruling out of the Exception 2 present in the definition of rape under Section 375 of Indian Penal Code and ought to specify in codified form that³¹

i) The fact that the victim and the perpetrator was is form of a marital or any other form of conjugal relationship should not be a mitigating factor in pronouncement of the final decree.

ii) The nature of relationship between the complainant and the accused should not be used as a defence to veil the crime.

All India Muslim Personal Law Board (AIMPLB) has always taken a strong opposition to the prohibition of Nikah halala and polygamy as they believe that any variation from the verses of Quran is synonymous to disrespect of the Prophet himself. They also believe that all of this is a mere political gimmick by the government.³² The secretary and legal counsel of AIMPLB Zafaryab Jilani added that “the practice of Nikah Halala cannot be declared to be unconstitutional as it is in accordance with the Quran and therefore is Supreme and cannot be altered”.³³ The All India Muslim Personal Law Board had earlier too drew major criticism for supporting Polygamy and the oppressive practice of Nikah Halala. They have also submitted a response to a Public Interest Litigation filed by a citizen for declaring the halala as derogatory to human nature and violative to Article 19 and 21 on the fact that “Mohammedan Law is based on Hadith and Quran and that such practices cannot be testified on the basis of fundamental rights, within the purview of expression ‘laws in force’ as mentioned in Article 13 of the Indian Constitution.”³⁴

“Failure to respond in the needs of changing society, brings stagnancy in the growth and progress of society. Therefore law must constantly reconcile with the fast changing society and not lag behind, otherwise time will come when the society is vigourous enough to cast away the law which is against its growth”. ³⁵ The cases of Nikah Halala, especially when the female does not voluntarily, in the ordinary course of nature, after getting divorce from her first husband engages into a second marriage just to be divorced the next day, must be considered as a suffocating submission accepted by them due to the weight of societal ties and not in free consent. Thus, this kind of marriages must fall within the definition of the offence of Rape. And appropriately, a codified law imposing a ban on this practice can remarkably wipe out the low sprits faced by women in the name of Nikah Halala and bring in a flexible law so as to adapt to the changing needs of the society.

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Footnotes

1. Author is a Student at Christ (deemed to be) University, Bangalore, India.

2. Wehr, Hans. Hans Wehr Dictionary of Modern Written Arabic: a compact version of the internationally recognized fourth edition. Ed. JM Cowan. New York: Spoken Language Services, Inc., 1994.. ↩

3. Gunjan,Supra Note-1 ↩

4. Noor Zaheer, Denied by Allah, Angst Against Archaic Laws of Halala, Triple Talaq, Mut'ah and Khula, 2015, ISBN 9382711589 ↩

5. Holy Quran(verse 2.230) ↩

6. Holy Quran, verse 2.172-173 ↩

7. Muhammad Aziz, Halala Marriage and Its legal/ Sharia Status, (Feb 01 2020 10:00 AM), https://paklawyer.com/blog/nikah-halala/. ↩

8. Astha Jain, Legality of Nikah halala in India, Legality of Nikah Halala (Oct 5 2018 11:23 Am), https://blog.ipleaders.in/nikah-halala/ ↩

9. http://www.islamawaren ess.net/Talaq/talaq_fatwa0 008.html, 2017 ↩

10. Samreen Hussain, Triple Talaq: A Socio-Legal Analysis, ILI Law Review 129, 129 (2010). ↩

11. Gunjan, supra note 1 ↩

12. Ibid ↩

13. Akthar Ahamed, The women who sleep with a stranger to save their marriage, https://www.bbc.co m/news/uk-39480846 ↩

14. Supra note 7. ↩

15. Section 375(ii) Indian Penal Code(1860) ↩

16. Exception 2 Indian Penal Code (1860) ↩

17. Supra note 1 ↩

18. Family Violence: Legal, Medical, and Social Perspectives, Paul Harvey Wallace, Routledge, 2015, pg- 355. ↩

19. Ibid ↩

20. RTI Foundation v. Union of India W.P. (C) No.284/2015 ↩

21. Bishnudayal vs Union of India A.I.R. 1981 S.C. 39 ↩

22. Tukaram & Anthr. Vs St of Maharastra 1979 AIR 185 ↩

23. Rao Harnam Singh, Sheoji Singh v. State, AIR( 1958 ).Punj 123. ↩

24. Ibid ↩

25. State Of Karnataka v. K.P. Thimmappa Gowda, ILR 4465, 4471 (KAR: 2004). ↩

26. Shayara Bano Vs. Union Of India(2017) 9 SCC 1 ↩

27. Sushant Pathak & Jamshed Adil khan, Exposed: How maulavis take money for one night stand with divorced women trying to save marriage, India Today (Aug 16 2017 11:20PM) https://www.indiatoday.in/india/story/nikahhalala-islamic-scholars-one-night-stand-divorced-muslimwomen-marriage-1029887-2017-08-16. ↩

28. https://sabrangindia.in/tags/online-halala-services ↩

29. TN Nath, Bareilly woman claims serial halala, (Feb 07 2019 04: 43 PM), https://timesofindia.indiatimes.c om/india/bareilly-woman-claims-serial-halala/article show/67876738.cms ↩

30. https://bmmaindia.com/ ↩

31. Report of the Justice J.S. Verma Committee on Amendments to Criminal Law,(Sept. 18, 2017, 12:00 PM), http://www.prsindia.org/uploads/media/Justice verma committee/js verma committe report.pdd ↩

32. Utkarsh Anand, Based on Quran, cannot be challenged over laws based on Constitution: Here is how AIMPLB isbatting for Nikah Halala and Polygamy, OpIndia (Jan 27 2020 12:50 PM), https://www.opindia.com/2020/01/aimplb-muslim-law-nikah-halala-polygamy-quran-hadith-constitutuion-tripletalaq-supreme-court/ ↩

33. Honey Let's Get You Married And Divorced And Get Back Together: Halala or Haram? ISBN No: 978-81-928510-0-6 http://www.legalserviceindia.com/legal/article-1201-honey-let-s-get-you-married-and-divorced-and-get-back-together-halala-or-haram-.html ↩

34. Anand, supra Note-33 ↩

35. Amita Singh, Nasir Aslam Zahid, Strengthening Governance through Access to Justice, Prentice Hall India Learning Private Limited, 2008, pg-73. ↩