CMR SCHOOL OF LEGAL STUDIES

FAMILY LAW-II
RESEARCH PAPER

Declaration
I, Aishwarya. P, a student of L.L.B, at CMR School of Legal Studies,
do hereby declare that this research paper titled “Nikah Halala- a
misconception in the society”; submitted for Family Law II, is an
original work of mine and is the result of my own intellectual efforts.
I have quoted titles of all original sources i.e., original documents, and
Names of the authors whose work has helped me in writing this
research paper have been placed at appropriate places. I have not
submitted this to any College or University for the award of any
degree or diploma.
Date: 30th November 2021
Place: Bangalore
Sd/: Aishwarya
Name of the Student: Aishwarya. P
 TOPIC – NIKAH HALALA- a misconception in the society

ABSTRACT-
→ In the holy Quran, nikah is defined as a marriage which is considered as a legal contract
between a bride and a groom where else halala in Quran refers to making something
permissible or legitimate. But when we put both the words together and search in the holy
Quran, no such word is found as Nikah Halala there. Then from where did, this practice
arrive? What is the real meaning of Nikah Halala?
→ In Quran, it is said that a triply divorced woman cannot marry her former husband. She
can marry her former husband only when she marries another man and later if her second
marriage is also incidentally dissolved then only; she can marry her first husband lawfully.
But some of the Muslim community misuses the practice of Nikah Halala to marry their
first wife within a short period. In this practice, a woman marries another man with the
intention to get a divorce so that she can get married to her first husband. This form of
marriage is forbidden or considered as Haram according to the Prophet Muhammad. It is
also prohibited in Islam and is a grave offense in the eyes of Allah.
→ In my research paper I am going to talk in brief about this practice, what is the original
meaning of this practice, how society has a misunderstanding of this practice, how people
misuse this practice in which rights of the women are exploited.

INTRODUCTION-
→ Nikah Halala is a concept that was introduced by Prophet Mohammad to safeguard the
marital relationship and to protect the woman from the arbitrariness of their husband.
An important term which we should know is Haram. The word Haram in Quran is
defined as forbidden by Allah. When a woman is triply divorced by her husband, she
becomes haram to him. It means that even if he wants to marry her, he can not because
now she has become forbidden to him. He is prohibited to marry her again. This
prohibition was meant to discourage a terminal divorce and keep men away from
breaking up marriages. This law was introduced by Prophet so that women can stop
becoming the victim of the arbitrariness of their husband’s anger. There were many
cases where a woman was divorced by their husband by seven or eight times within one
year. A man could give divorce to his wife multiple times as he wants and he could also
revoke the divorce whenever he wants. The prophet, to save the woman from these
kinds of relations developed the concept of Nikah Halala.
→ In Nikah Halala when a woman is triply divorced by her husband then she can not marry
him again. She can only marry her first husband when she marries another person and
later if her second marriage also incidentally dissolves in any lawful manner, then if she
wants to marry a third time then only, she can marry her first husband if he is available
and if he is interested. The law permits this by concluding that since she is not her first
husband's triply divorced wife but a divorced wife of her second husband, therefore, the
 second marriage erases her former status emanating from her first marriage.1 This is the
actual procedure of Nikah Halala which was introduced by the Prophet Mohammad. The
holy Quran also gave certain warnings while giving the principle of Halala. The Quran
clearly says that “Allah curses the one who marries to make a woman Halal for her
husband, and the one for whom this is done (i.e., the first husband and the woman). But
if a man without any preconditions marries the divorced woman, consummates the
marriage with her and later divorces her thus making her free to marry her first husband,
then the Halala is considered valid.”2 Thus we can conclude that Prophet Mohammad
did not put restrictions on Halala but he prohibited pre-planned Halala or Halala fixing.
→ According to section 2 of the Muslim Personal Law (Shariat) Application Act1937 out
of the court, divorces are recognized by the side both husband and wife. According to
Muslim law, a man should pronounce a talaq only if he has real intentions to dissolve
the marriage. Even after the divorce, the law gives him a certain period to rethink his
decision and to reconcile with his wife. This period is called iddat in Muslim law. Even
if the man fails to decide during the iddat period, the law gives him another chance where
he can still reconcile with his wife with the means of fresh nikah. But it is to be duly
noted that if a man pronounces talaq for the third time, then he cannot revoke his talaq
even during the iddat period. Also, he cannot retrieve his marital relationship with fresh
nikah. Therefore, a man before pronouncing the third talaq should also think before
doing it and should only say when he wants to end his marriage.
→ Talaq-ulbiddat is a form of talaq which is considered an immoral form of divorce. In
this type of divorce, the husband pronounces talaq thrice in a row in one sitting when
the wife is in a state of purity. This type of divorce is not recognized by Shias. It is only
recognized by Sunnis3. In these types of divorces when the man pronounces talaq three
times, the process of Halala would be applied if the man and the woman want to marry
each other again. This process of marrying the same woman after giving her triple talaq
is known as Halala and Nikah Halala is also known as Tahleel marriage in Islam.

RESEARCH METHODOLOGY-
→ The methodology used in this research consist of secondary sources. The paper also
consists of analytical, comparative, explanatory, and descriptive research methodology.
The paper is based on after studying existing articles, journals, news, online websites,
research papers, and books. They all form a part of secondary source. Secondary
sources of information helped to develop opinions supported by legal sanctity.

RESEARCH OBJECTIVE-
→ The main objective of the research is to bring into the light what is the real meaning of

1
Tahir Mahmood, The Muslim Law of India 113 (Lexis Nexis Butterworths 1980)
2
Samridhi Sikha Das, Nikah Halala: a Legalized Sin, Vol.5, ISSN2581-5504, Pg.4(2019)
3
Masroor Ahmed v. State (NCT of Delhi) and Anr., (2007) ILR 2Delhi1329
 Nikah Halala. I have done my research in this topic to explain that according to the
Prophet Mohammad what he meant by introducing Nikah Halala and how people have
misinterpreted it and are using this custom for their own benefit by misusing it
which leads to violation of women's rights. Another main objective to choose this topic
was to explain how women are being exploited in the name of religion and what all
measures can be taken in order to safeguard the rights of the woman.

CONCEPT OF NIKAH HALALA-

→ Though the word Nikah Halala is not found in the Quran, still it is considered as a
mandatory process that is obligatory upon the wife to perform. But in most cases,
women are just being subjected to the thoughtless pronouncement of irrevocable triple
talaq by her husband in one sitting. When a man pronounces talaq for the third time,
then the marriage is dissolved and he can not save the marital relation by revoking the
divorce. The marital relationship cannot be saved even by fresh Nikah. The wife
becomes Haram to her husband. The husband can remarry her wife only if she marries
another man, consummate the marriage with him and if the second marriage is also
dissolved then if the woman wants to marry her first husband, she can legally marry
him.

MEANING AND ORIGIN OF NIKAH HALALA-

→ The word Nikah is defined as’ marriage’ in the Holy Quran and the word Halala refers
to ‘lawful’ according to Allah. But the term Halala is not found in the Holy Quran.
Another important term which we should know is Haram. The word Haram in Quran
is defined as ‘forbidden’ by Allah. When a woman is triply divorced by her husband,
she becomes haram to him. It means that even if he wants to marry her, he cannot
because now she has become forbidden or Haram to him. He is prohibited to marry
her again. In verse 2.230 of the Quran, Allah says “if he has divorced her [for the
third time], then she is not lawful to him afterward until [after] she marries a husband
other than him. And if the latter husband divorces her [or dies], there is no blame
upon the woman and her former husband for returning to each other if they think that
they can keep [within] the limits of Allah.”4
→ The sole purpose of this process according to Prophet Mohammad was to teach men
that they cannot dissolve their marriage by pronouncement to talaq by three times in
anger, frustration, or during the stage of intoxication. Even if they do so, they cannot
revoke the divorce nor can they save their marital relation by fresh marriage. The
woman becomes Haram to them and thus any relation with the woman is illegitimate
and forbidden in the Holy Quran. The practice was introduced to protect the basic

4
Divya Shree Nandini, nikah halala, ISSN(O)2582-7340 (2020)
 foundation of the marriage and to prevent men from divorcing their wives for
insignificant disputes and reasons.

MISCONCEPTION IN THE SOCIETY-

→ A major misconception in the society about Nikah Halala is that Prophet
Mohammad has introduced this process where the woman after the divorce has to
undergo Nikah Halala where she has to marry another man and spend a night with
him then divorce him to get married to her former husband. This is a very wrong
interpretation of the Prophet's words. Allah never said that a woman has to undergo
a second marriage and then consummate the marriage to marry her first husband.
→ As per the Holy Quran, “a Nikah Halala with the intension of divorce so that the
original spouse can get married again is forbidden.5 The main point here is that
Nikah Halala cannot be pre-planned. The Quran clearly says that “Allah curses the
one who marries to make a woman Halala for her husband and the one for whom
this is done.”6
→ Another misconception in our society is that Nikah Halala is a process in which a
woman is undoubtedly obliged to marry a person temporarily to get married to her
former husband. It is believed that the woman has no other option but to marry a
stranger for one night. Society believes that she has no choice of her own and she
has to take a divorce with the second husband to legalize the marriage with her
former husband.
→ This is a very wrong interpretation of the process. According to the Holy Quran,
Allah never said that Nikah Halala must be done so that the woman can marry her
former husband. It was never an obligatory process. The Quran clearly says that
“Allah curses the one who marries to make a woman Halal for her husband, and the
one for whom this is done (i.e., the first husband and the woman)7. Prophet
Mohammad did not put restrictions on Halala but he prohibited pre-planned Halala
or Halala fixing.
→ The last misconception about Nikah Halala is that woman is forced to enter into this
kind of marriage and they do not have any choice. As stated above Allah never said
that this kind of marriage is obligatory. After a divorced woman should get married
but with a man whom she wants to spend her life with. The marriage should never
be done in force or coercion. Voluntary consent should be there for any kind of
marriage. If a woman is forced to enter into a marriage, then it is not permissible.

MALPRACTICE OF NIKAH HALALA-

5
Divya Shree Nandini, nikah halala, ISSN(O)2582-7340 (2020)
6
Samridhi Sikha Das, Nikah Halala: a Legalized Sin, Vol.5, ISSN2581-5504, Pg.4(2019)
7
Vibha And Adhish, Critical Analysis on Practice of Nikah Halala in The Light of Indian Rape, vol1(2020)
 → Nikah Halala is a practice that is not unconstitutional or an offensive practice.
It is the people and the community which has misused this practice for their
benefit. It is the society that misuses this practice and malpractice it for their
advantage. They destroy the purity of the process. People have twisted and
breached this pure process and the wording of Prophet Mohammad in the Holy
Quran so that they can get married to their former spouse within no time after
the divorce. In the modern world, the practice of Nikah Halala is been misused
and manipulated according to people’s convenience.8
→ There are many Maulavis who are Islamic scholars who offer themselves to
marry a divorced woman and spend one night with them and then divorce them
so that the woman can marry her former husband. The Quran clearly says that
“Allah curses the one who marries to make a woman Halal for her husband, and
the one for whom this is done (i.e., the first husband and the woman). Prophet
Mohammad has forbidden pre-planned Halala. But today in modern society pre-
planned Halala is a very common process.
→ Reports also show that there are Maulavis who charge money between 20
thousand to 1 lakh to take part in the process of Nikah Halala where they even
exploit women physically and mentally in the name of religious practice. There
are even online services to help Muslim divorced women get back to their
former husbands by helping them to enter into Halala marriage.9 In the name of
religion, Nikah Halala is being used by the people according to their
convenience. No one understands that the Prophet brought this process for the
betterment of the woman. People have started doing malpractice and have
destroyed the pure sense and meaning of the process.

CONCLUSION-

• What is the constitutionality of Nikah Halala?

→ When Nikah Halala is done to get a divorce so that the formal husband and wife
can marry each other then there are many rights with are violated for a woman.
Women are being exploited behind the veil of religion and culture. Woman to marry
their former husband has to marry some stranger and spend a night with him. Even
though the marriage is taking place with her knowledge but no voluntary consent is
here in the marriage. This practice of Halala is not only morally wrong but it is also
legally wrong.
→ The fundamental rights guaranteed under the constitution are being violated also
the malpractice of Halala amounts to the criminal offense of cruelty under
Section498A of the Indian Penal Code. This provision criminalizes harassment
which can be done mentally, physically, and emotionally to a married woman by

8
Vibha And Adhish, Critical Analysis on Practice of Nikah Halala in The Light of Indian Rape, vol1(2020)
9
Sachin Dubey, Nikah Halala: A law that demands a woman to sleep with stranger to remarry her divorced
husband, (Apr 05 2017 11:38), https://www.outlookindia.com/website/story/nikah-halala-a-law-that-
demands-awoman-to-sleep-with-stranger-to-remarry-her-di/298450
 her husband or husband’s relatives. But a huge percentage of a woman suffers in
silence. They don’t file a complaint or go to the judiciary for justice. For them, if
they will voice out their opinion, then they make become the target of the religious
community and even their husband and family. So even if they are divorced by their
husband without any valid reason, they are keen to go back to their husband by any
method even if it means sacrificing their rights and dignity. This is such a sad
situation where we can’t even imagine the amount of pain a woman bears while
going through these kinds of situations.
→ The triple talaq itself is a very unconstitutional means of divorce. It gives absolute
power to the husband to divorce his wife in one sitting without any reasonable
cause. Then later they realize their mistake and if they want their former wife again,
the malpractice of Halala arises from here. Malpractice of Nikah Halala leads to
violation of Articles 14,15(1),21, and 25(1). Muslim marriages and divorces are
governed by Muslim personal laws and them solely responsible for the infringement
of fundamental rights of Muslim women. In Quran, it is nowhere mentioned that
Nikah Halala is obligatory to establish the dignity of a woman making her lawfully
robust for her former husband.10

SUGGESTIONS-
→ In the recent judgment of Sharyara Bano v. Union of India 11, triple talaq was held
unconstitutional by the court. It is now considered evil in the eyes of law. This was
a very great step taken by the judiciary to protect the rights of women and to bring
equality in the community. Such steps should be taken by the judiciary to ensure no
one is suffering in the name of religious malpractice.
→ To protect a woman from malpractices like Nikah Halala, it should be made a
criminal offense and severe punishment should be given to those who force her and
to those who are willing to marry her for one night.
→ A Muslim women should be made aware of their rights so that they can fight against
injustice done to them in the name of the religion. The community people should
be also made aware of the actual meaning of Halala and that the pre-planned Halala
is forbidden in the Holy Quran. Legislation and the Muslim personal law-making
committee should make strict laws to safeguard a woman from exploitation and
injustice.

➢ According to Islam deliberate planning of a marriage of a woman with a man

just to get a divorce so that she can marry her former husband is illegitimate and
forbidden. It is the society that has misinterpreted the words of the prophet and
used this process for their benefit by malpractice. Strong laws should be brought

10
Samridhi Sikha Das, Nikah Halala: a Legalized Sin, Vol.5, ISSN2581-5504, Pg.8(2019)

11
Shayara Bano v. Union of India, SCC 960, 963 (SC: 2017).
 by the legislation and also Muslim Women should be made aware of their rights
and remedies to maintain justice and equality in society. The legislation should
put an end to this kind of malpractice.

BIBLIOGRAPHY-
1. Tahir Mahmood, The Muslim Law of India (Lexis Nexis Butterworths 1980)
2. Syed Khalid Rashid, Muslim Law (Eastern Book Co. 2018)
3. Paras Diwan, Muslim Law in Modern India (Allahabad Law Agency 1991)
4. Dr. I.A Khan, Mohommedan Law (Central Law Agency 1966)
5. Vibha And Adhish, Critical Analysis on Practice of Nikah Halala in The Light of Indian
Rape, vol1(2020
6. Divya Shree Nandini, nikah halala, ISSN(O)2582-7340 (2020)
7. Samridhi Sikha Das, Nikah Halala: a Legalized Sin, Vol.5, ISSN2581-5504, Pg.4(2019)
8. Sachin Dubey, Nikah Halala: A law that demands a woman to sleep with stranger to remarry her
divorced husband, (Apr 05, 2017, 11:38)