On the first day of reopening, after summer vacation, the Supreme Court decided to refer to a larger bench, the batch of petitions challenging the constitutional validity of polygamy and ‘Nikah Halala’ among Muslims. These petitions seek to declare section 2 of Muslim personal law (Shariat) Application Act, 1937, arbitrary and violative of constitutional norms. The said provision deals with the application of personal laws to Muslims. According to it in all issues/questions relating to succession, marriage, divorce (including talaq, ila, Zihar, lian, khula and mubaraat), guardianship, maintenance, personal property of women or any other personal matter, where the parties are Muslims, the rule of decision shall be Muslim Personal law or Sharia.
‘Nikah Halala’ is one such practice under Muslim personal law, which must have outraged the people of this country long back. Nikah Halala is a practice where if a husband, who was in a fit of rage or otherwise divorced his wife and after realizing his mistake or regretting his decision if wishes to remarry her then the women have to first marry some other man and consummate such marriage. Only when this second man divorces the women, she becomes ‘halal’ (lawful) for her husband and the husband can legally reunite with her. As per the Quranic verses, there must be a reasonable gap between two pronouncements of ‘Talaq’. This would ensure sufficient cooling time for the husband to reconsider his decision of divorcing his wife. But in reality a more distorted form is practised where the husband pronounces, “ Talaq, Talaq, Talaq” thrice in one go and later if wishes to reconcile, the women are made to marry and sleep with some other man.
We are a country which is outraged on very rape incident happening on daily basis around us, be it rape of minor or adult women. Strangely, our sensitivities towards women end when she is exploited in the name of personal/ religious laws. Many must not be aware of the plight of women who have to undergo this draconian practice. In many instances, the Halala is planned and staged either the local cleric or some male family member offers to have a ‘one night stand’ with the divorced women in lieu of some money. There are even online portals offering a man for performing of nikah halala. The worst happens in some cases where the predetermined offer is broken and the man refuses to leave the women after one night. The trauma of sleeping with a stranger continues for days or months when the man forces himself upon woman every night till he gets more money from her ex-husband or relatives. The women have to silently face this vilest form of rape in the garb of personal laws, only to return to a husband who will in future accuse her of being ‘impure’ and ‘used’. Most Indian men are not able to digest the fact that their wife slept with someone else, even if it was to fulfil legal requirement to remarry him. This dents the so-called male ego of the man and results in additional domestic violence for the women, who have gone through ‘Halala’. Often she is called a woman of loose character who enjoyed sleeping with some man other than her husband.
This practice of ‘Halala’is not only morally wrong but is a severe legal problem. It is anti the very fundamental rights of Muslim women, guaranteed under the Constitution of India. It infringes the fundamental right to equality and right to life and liberty guaranteed under Article 14, 15 and 21 of the Constitution. Where on one hand Muslim women are not being treated equally with Muslim men, as she alone has to face the punishment of divorce, she is also not treated equally with other (non-Muslim) women citizens of the country. A woman should be allowed to be raped just because she practices Islam? Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Discriminatory laws for Muslim and non-Muslim women infringes this fundamental right of Muslim women. When the state acts effectively to save Hindu women from malpractices of child marriage, sati etc. then why shouldn’t it act to save Muslim women from such exploitive religious laws? Apart from being unconstitutional the practice of ‘Halala’ also amounts to the criminal offence of cruelty under section 498A of the Indian Penal Code. The provision criminalises harassment (physical, mental or emotional) caused to a married woman by her husband or husband’s relatives.
A huge percentage of women citizens of this nation suffers in silence just because they practice Islam and most political parties prefer to stay tight-lipped about it either in fear of hurting religious sentiments or in greed to score votes of the community. One can only hope that the petition filed before the Hon’ble Supreme Court, challenging the practices of polygamy and ‘nikah halala’ among Muslims, results in the abolition of these practices and brings some relief to Muslim women.