Nikah Halala is a practice prevailing in some of the Muslim communities around the world; especially where Triple Talaq is legal. In such practice a woman has to marry another man and consummate that marriage so as to marry her previous husband. In previous years a petition has also been filed to question the same practice along with polygamy on the grounds of Gender justice enshrined in Indian constitution.

The case is still pending before Supreme Court as opposition counters it on the ground that religious laws and customs can't be questioned on the grounds of rationality by Supreme Court, though this argument didn't stopped SC from declaring Triple Talaq as illegal it is yet to see what will SC decide on the matters of polygamy and Nikah Halala.

This issue can't be viewed only from a single lens as it again bring into conflict the principle of gender equality with right to freedom of religion (previously done in sabrimala case) and if then to what extent the jurisdiction of Supreme court extends to the religious matters.

Concept of Nikah Halala

Nikah Halala is an Islamic practice which has been so misconstrued over the period of time from its original notion that now it is often serves as a tool in the hands of Muslim men to legitimize the continuous exploitation of Muslim women; who have to bear the ultimate burden of the irresponsible words spoken out of irrationality by their husbands.

The word 'Halala' finds its roots in the word 'Halal' which means something not prohibited thus lawful and permissible and when this is used in the context of marital relations; it means a wife becomes 'Halal' (permissible or lawful) by going through the ceremony of Nikah Halala.[1] it has over the time became instrumental in the fulfillment of the purpose it was made to prevent in the first place.

Nikah Halala is a deep violation of the injunction laid by Quran to preserve the sacramental aspect of Muslim marriage and was first instituted as a prohibiting degree so as to warn irresponsible men who treat their wives as mere chattels that they can't claim her back after pronouncing the third and final Talaq unless she willingly contracts another marriage and that too becomes dissolved by divorce or death of her subsisting husband then only it will be possible for her to return to first husband and only when she wants to.

Quran lays down an elaborate and complex procedure for divorce which acts as deterrent so as to that it is only in the case of serious disagreements and irretrievable breakdown of marriage i.e reconciliation is a rare possibility; that couple will follow through such a procedure but in the case of instant Triple Talaq this doesn't hold true. As it is often in the fit of rage that husband irrationally pronounce 'Talaq' Triple times which make the end of that marriage absolute so leaving woman helpless and absolutely defenseless in front of her impending future in just few minutes.

It then becomes extremely difficult for the divorced couple to remarry as it will be in the direct contravention of the Post-Talaq prohibited degree of marriage. It will be a reasonable assumption to make that the people following the former procedure will not be ordinarily interested in marrying again as the framework of such complex procedure guarantees that their decision to be separated is seriously contemplated but the same argument will falter as Triple Talaq can be pronounced for frivolous of reasons just in fit of rage. It is quite outrageous to subject women to such a practice which clearly violates their dignity and freedom and often renders them helpless in front of deep humiliation.

As Mr. Arun jaitely has put it very prolifically and appropriately in his essay titled 'does the Bareilly Nikah Halala doesn't shake your conscience?' that:
"It is this totally unjustified legitimisation of instant Talaq that has led to the abominable circumvention of the Quran, as a consequence of which a pliable person is set up to marry the instantly divorced wife, consummate the marriage overnight and divorce her the next day so as to legitimise her remarriage with the original husband in accordance with the law laid down in verse 2:230"

Origin of Nikah Halala

Holy Quran doesn't mention the word 'Nikah Halala' anywhere and so refers to the practice of an Islamic impermanent marriage subjected to wife who herself is the victim of irrational pronouncement of instant Triple Talaq[2]. The first two times Talaq is pronounced it could be withdrawn but the third time it is irrevocable.

When a husband already revoked divorce twice in marital relations and after that divorces his wife, it becomes illegitimate for them to marry again unless she marries another man and it is only when that man too divorces her or dies; they can marry again. Moulana Ashraf Ali thanvi (1863-1943) a prominent Islamic jurist scholar puts the concept of Nikah Halala very well; he explains "A person pronounces a revocable (raji) Talaq. He then reconciles and resumes cohabitation.

Two or four years later, under provocation he once again pronounces a revocable Talaq. On recovering from provocation, he again resumes cohabitation. Now two Talaqs are over. Hereafter, whenever he pronounces a Talaq, it will be counted as the third Talaq, which will dissolve the marriage forthwith, and should a remarriage be desired by the parties necessitate Halala (inter-mediatory marriage)"[3].

Illegitimacy of Nikah Halala

This practice becomes ironic when once created so as to safeguard them has in many cases used as a tool for their suppression. Patriarchy often results in twists and turns of religious laws so as to suit its narrative of justifying male dominance in the society. Religion, culture and customs are long have been used as tools for justification of oppression of women, many of whom treat them as a property of their father before marriage and of husband after marriage thus circumscribing any chance of having their own individual identity.

The main and relevant inference is that this practice which is termed as 'Nikah Halala' can't be preplanned. A marriage which is forced on the parties is indisputable have negative consequences on such people. If the woman is divorced with the aim of pre-planned Halala, her relationship with second husband will be illegitimate and her further solemnizing marriage with her first husband again will be also illegitimate in context of the original purpose of law.

Views In The Context Of Nikah Halala: To Substantiate Its Illegitimacy In The Present Context
Quran:
Allah in the second chapter of Quran states:
"Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers." Qur'an (2.229)

Allah states in the next verse that:
"And 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. These are the limits of Allah, which He makes clear to a people who know." Qur'an (2.230)

In Islam a man is granted to marry the same woman twice after divorcing her but if he decides to end the marriage for third time the marriage stand completely repudiated and the same can be available to marry him only after she enters in to marriage with other man, consummates that marriage and he further dies or divorces her. It was a kind of prohibition degree intuiting to not reduce the institution of marriage to a mere mockery. It was implemented to maintain a certain discipline and values in marital relations and to provide some safeguard to women.

Opinion of Jurists

Dr. Furqan Ahmed says in his book 'understanding the Islamic laws of divorce' "Prophet Muhammad tried to put an end to this barbarous and uncivilized pre-Islamic practice which was to divorce a wife and take her back multiple times to ill-treat her. The Prophet, by the rule of irrevocability of the Triple Talaq, made a clear indication that such a practice is not to be continued indefinitely. Thus, if the husband wished to take the wife back, he should go in accordance with the principles of Nikah Halala; if not, the third pronouncement of Talaq after two consecutive reconciliations would act as a final bar"[4]

In Bahishti Zewar, Jurist Maulna Ashraf Ali Thanvi further explains that to remarry the woman after the third and final pronouncement of Talaq it can only made permissible if she marries and then consummate that marriage with another man. "After which, if the second husband dies or divorces her after sexual intercourse, then after the completion of the Iddat period, she can remarry the first husband. But, if the second husband unfortunately died or divorced her before the establishment of a sexual relationship, then it will not be taken into account and she cannot marry the first husband in such circumstances". [5]

Nikah Halala And Rape:

an phenomenal analysis of Nikah Halala in context of Indian rape laws is done by Vibha V & Adhish Anil Kumar Kulkarni in their research paper titled 'Critical Analysis on Practice of Nikah Halala in the light of India Rape Laws' which also forms the basic premise of this section.

when a woman who is rendered defenceless and whose status as a wife in the society has been scrapped in a short span of time by mere utterance of three words often at the whims and fancies of her husband she can''t be held to be in prudent state of mind and it would not be surprising that she agrees to Halala in the view of saving her from societal disgrace and lifetime of insecurity and humiliation. but the main question is that when she goes under this practice in the pursuance of remarrying her now divorced husband and consummate the same marriage, can it be termed as free consent and if not then can this practice be brought under the definition of s375 of IPC which defines rape.

Conclusion:
there is need for better awareness in the matters of the personal law which under their garb of religious profession often can be twisted and turned in to ropes to choke women with. this offensive and humiliating practice must be criminalized under s374 i.e outraging a woman's modesty,s375 i.e rape and s494 i.e bigamy so as to give hope to numerous women who have been distraught and defenseless in the face of their fate and destiny which often from centuries has been placed in the hands of their fathers and husband rather than themselves. there is a need for legislation so as to empower these women and give them at least a tool to break this continuous cycle of endless exploitation and lifelong humiliation.

References:

1. https://indianexpress.com/article/what-is/what-is-nikah-Halala-how-it-was-established-and-where-it-stands-in-modern-india-Triple-Talaq-4618415/
2. Noor Zaheer, Angst against Archaic Laws of Halala, Triple Talaq, Muta and Khula, HRIRJ, 100 (2015).
3. Debayan Roy, No Polygamy, Nikah Halala in Mahila Andolan's Proposed Muslim Family Law, News 18 India,
4. Ameera V. U, Marry Him, Then Marry Me: Nikah Halala and Malayalam Movies, 1 IJRHAL 2321, 2347 (2017).
5. Maulana Ashraf Ali, Bahishiti Jewar