The ‘triple talaq’ and ‘halala’ for divorce: Is this permissible or not?

Marriage is a bond that can be ended only under exceptional circumstances, and its ending can’t be pre-planned. A woman is not a play-thing to be enjoyed at night, discarded in the morning, and sent back to her former husband. 

Marriage is a bond that can be ended only under exceptional circumstances, and its ending can’t be pre-planned. A woman is not a play-thing to be enjoyed at night, discarded in the morning, and sent back to her former husband. 

Whenever I am exposed to some misconceptions and misinterpretations of Islamic rules, being both a Muslim and a law student, I feel personally attacked and take it upon myself to correct it and justify it in a way that supports logic and humanity.

When I read or hear the words ‘triple talaq’, there conjures up in my mind an image of a world where instant-gratification is the norm.

Instant coffee, instant food, instant connections, instant information, instant commentary, instant reactions, instant love, instant acrimony, instant talaq…

Triple-talaq is a phenomenon which is non-existent in Islam, and was misused as a way to get expeditious break-up from marriage until the supreme court’s judgement on Shahbano’s case in 2017 came up, declaiming the legality of triple talaq. 

“Talaq” is in itself an outrageous word in Islam, and more than that is “Nikah- Halala”. 

If I were to say it in a few words: the “three-in-one” divorce is a mutilation of the Quranic injunction vis-à-vis divorce.  Prophet Mohammad (pbuh) said: “A divorce is one of those halal, or permitted acts, which is most disliked by God” (Abu Dawud)

Notwithstanding the importance of perpetuation of a marriage, Islam is very clear about a couple’s right to seek separation if the marriage is not working, or if one or both spouses have  incongruous differences, or simply, on the basis of lack of love or liking between them.

The Holy Quran, on divorce, states: “If a husband and wife cannot get along, two arbitrators, one from each family, should provide counselling in an effort to avert the much-disliked talaq” (4:35).

Talaq, divorce, and iddah

After the failure of all efforts for reconciliation, the process of divorce starts. According to the religious scholar, Nilofer Ahmed: “Divorce can be broadly of two types: (i) talaqul sunnah, which is based on the Quran and Hadith and (ii) talaqul badi, three-in-one divorce, though based on a heterodox innovation, will still be considered to have taken legal effect.”

Ahmed further adds: “When Hazrat Umar (RA) was the caliph, he used to punish those men severely who followed this method. The talaqul sunnah is further divided into the ahsan, or the best and most laudable, and the hasan, or the laudable. In all the above types, the divorce is revocable up to the second pronouncement, but becomes irrevocable after the third pronouncement of the words of divorce.”

According to the Shariah law, if a husband uses the word ‘talaq’ for his wife, consciously or in a fit of anger, he can revoke the divorce within the period of ‘iddah’, which is 3 months. Iddah can be extended in one case – if the wife is pregnant, then the iddah period stretches until the child is born. 

The talaq-iddah concept serves as a warning for the husband to not divorce his wife permanently. If the husband uses the word ‘talaq’ for a third time, or three consecutive times orally, (directing at her, with intention of divorce), then the final divorce is completed and the couple cannot remarry through the iddah period procedure or by their own personal consent.

Talaq is, although being permitted, keeping in mind its necessity in Islam, one of those acts which should be done with upmost thinking and not any fit of rage. Marriage is a life-time commitment and a serious issue in Islam, and it is disliked by Allah to make it a joke. Marriage, divorce, and re-marriage, even though being inter-related, have their own consequences and ways to perform it.

It must be understood that despite the Quranic instruction to value marriage, Muslim men and women are allowed to be divorced. And it must be understood that the process of divorce, according to the Quran, is not impulsive, done in anger, a heat-of-the-moment triple talaq, or a three-in-one divorce. The Quran is very clear about divorce. 

One of the worst and ugliest consequences of a verbal talaq is the practice of ‘halala’. Not one, not two, but almost every Islamic scholar, with adequate knowledge of the injunctions of the Holy Quran, and the verbal and other endorsements of Prophet Mohammad (pbuh), as brought to Muslims through hadith, repudiates the idea of halala to have any divine validation.

Nikah halalah is a practice in which a woman, after being divorced by triple talaq, marries another man, consummates the marriage, and gets divorced again in order to be able to remarry her former husband. Nikah means marriage and halala means to make something halal, or permissible.

The unsavoury practice of halala is a dark manifestation of toxic male entitlement and perpetuation of patriarchal ethos where women are considered second-class citizens. Words uttered in anger, a triple talaq given in the haze of anger, in an intoxicated state, or as a stark articulation of male ‘superiority’, are not that easy to undo, to unsay, to retract. The important thing to understand is that if triple talaq does not have religious authorisation, there is no place for halala to be used as a cover to do damage control, so to speak.

Does the Quran permit this? Absolutely not.

The (mis)use of halala

The Holy Quran says in 2:230:

And if a husband divorces his wife (a third time), then he cannot, after that, re-marry her until after she has married another husband and he has divorced her. In that case, there is no blame on either of them if they reunite provided they feel that they can keep the limits set forth by Allah. Such are the limits set by Allah, which He makes plain to those who understand.”

As remarriage was encouraged, once the three-month period of iddat or waiting is complete, she could marry anyone else she wanted. These were conditions put in to protect, not exploit, women.

Further, if this husband dies, or if she didn’t get along with him and it leads to a divorce, she is free to go back to the first husband as it is halal. This is to be of her own free will and without any conspiracy, and certainly not a marriage entered into cynically just for the purpose of an immediate divorce so that she can remarry the first husband. Such a marriage can only be called a malpractice or an innovation against the spirit of Islam.

The way it’s often practiced is, if a woman has had an irrevocable divorce and expresses a desire to go back to her husband, or the husband wants to have her back, a local maulana suggests halala – that is, she marries another man, obtains a divorce, completes her iddat period, and then marries her first husband again.

Since it is almost impossible to find a man who would assuredly divorce the woman, often, local clerics offer their services. Under this, a nikah is conducted between the cleric and the girl, with the clear understanding of divorce the next day or a few days later.

The whole exercise is hush-hush, unlike the way suggested in Islam, where a man is asked to throw a reception after the nikah so that nobody can cast aspersions on the integrity of the woman in the future. In such a twisted form of halala, everything is done under the cover of night, with barely any witnesses. It is almost like legalized prostitution, where again, the dignity and integrity of women is at stake.

As the All India Muslim Personal Law Board (AIMPLB) submitted before the court:

“[There are] unequivocal and unambiguous Hadiths of the Prophet Muhammad (PBUH) where mock marriages and mock divorces are reported to be a cause of curse from the Almighty Allah. It is in the said Hadiths that the reference to the term Halala is found, though it is not mentioned in the Noble Quran. Whereas in any case, the term “Nikah Halala” is not found even in [the] Hadith. The Hadiths of the Prophet Muhammad (Peace Be upon Him) in condemning Halala are as follows: “Allah’s curse is on the one who makes a contract or agreement for Halala (Both the one who carries out Halala and the one who it is done for)” (Sunan al Darami/Mishkat al Masabih), and “Allah has cursed the muhallil (one who marries a woman and divorces her so that she can go back to her first husband) and the muhallal lahu (first husband)”.

Simply put, such a wedding has no Islamic sanction. It is akin to taking a bull on hire, as is done in rural areas to enable cows to procreate. Except in this form of marriage, there is no procreation, just recreation for the man and humiliation for the woman, who ends up suffering in multiple ways because of her husband’s temper.

Today, the way halala is used defeats the purpose of the restriction. Any nikah with a pre-agreed date and time of divorce is not allowed in Islam.

Marriage is a bond that can be ended only under exceptional circumstances, and its ending can’t be pre-planned. A woman is not a play-thing to be enjoyed at night, discarded in the morning, and sent back to her former husband. 

It is absolutely impermissible and a grave sin in the sight of Allah Almighty for the believers to plan such a Halala, which makes a mockery of Shariah.

Sunan of Abu-Dawood Hadith 2071, narrated by Ali ibn Abu-Talib, reports that the Prophet Muhammad (PBUH) said: “The Curse of Allah 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!”

Islam does not have any injunction that a woman can be married to another man simply for the sake of attainment of divorce to marry her first husband. Halala is not permissible to be a pre-planned act- halala, in that form, is a despicable act as per Islam.

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