particularly in areas where Triple Talaq is legally recognized. In this
practice, a woman is required to marry another man, consummate that marriage,
and then only can she remarry her previous husband. In recent years, a petition
has been filed challenging this practice, along with polygamy, based on the
principles of gender justice enshrined in the Indian constitution. The case is
currently pending before the Supreme Court.
Opponents argue that religious laws and customs should not be subject to
scrutiny by the Supreme Court based on rationality. However, this argument did
not prevent the Supreme Court from declaring Triple Talaq illegal. The decision
on the matters of polygamy and Nikah Halala is yet to be determined.
This issue cannot be looked at from a singular perspective, as it once again
raises conflicts between the principles of gender equality and the right to
freedom of religion, as seen in previous cases such as the Sabarimala case. The
extent of the Supreme Court’s jurisdiction in religious matters is also a
crucial aspect to consider in this context.
Nikah Halala, originally an Islamic practice, has undergone significant
distortion over time, deviating from its intended purpose. It has now become a
tool frequently wielded by Muslim men, leading to the ongoing exploitation of
Muslim women. These women often find themselves burdened by the consequences of
impulsive and irrational words spoken by their husbands.
The term ‘Halala’ derives from ‘Halal,’ meaning something permissible or lawful.
In the context of marital relations, it signifies that a wife becomes ‘Halal’-lawful
or permissible-through the ceremony of Nikah Halala. Unfortunately, over time,
this practice has strayed from its original purpose and has, in fact, become
instrumental in perpetuating the very issues it was initially designed to
prevent.
The Quran outlines a detailed and intricate procedure for divorce, designed to
act as a deterrent and ensure that separation only occurs in cases of serious
and irreparable marital discord where reconciliation is improbable. However, the
practice of instant Triple Talaq diverges from this principle. Often, in moments
of anger, husbands pronounce ‘Talaq’ thrice abruptly, abruptly terminating the
marriage and leaving women vulnerable and defenseless in a matter of minutes.
The divorced couple faces significant challenges in remarrying due to the
prohibition against marriage within the post-Talaq degrees. While those
following the Quranic procedure are less likely to remarry, the same cannot be
assumed for cases of Triple Talaq, which can occur impulsively for trivial
reasons. This practice, violating the dignity and freedom of women, subjects
them to profound humiliation.
When a woman, left defenceless and stripped of her societal status as a wife
through the utterance of three words by her husband, may find herself in a
vulnerable state of mind. Under societal pressure and the fear of disgrace and
lifelong insecurity, she might agree to Halala. However, the critical question
arises when, in pursuit of remarrying her now divorced husband and consummating
the same marriage, can her participation be considered as genuine free consent?
If not, does this practice fall within the purview of Section 375 of the Indian
Penal Code, which defines rape.There is a pressing need for increased awareness
regarding personal laws, which, often masked as religious practices, can be
manipulated to oppress women.
The offensive and degrading practice of Halala should be legally addressed by
criminalizing it under Section 374 (outraging a woman’s modesty), Section 375
(rape), and Section 494 (bigamy). This legal approach aims to offer hope to
countless women who have endured distress and vulnerability due to a fate and
destiny historically dictated by their fathers and husbands, rather than by
their own agency. Legislation is essential to empower these women, providing
them with a tool to break free from the cycle of perpetual exploitation and
lifelong humiliation.
