Nikah Halala: With reference to rape laws in India.

Nikah Halala: With reference to rape laws in India.

 

Introduction

The practice of Nikah Halala is one of the most flawed Islamic practices necessitating cohabitation by the woman who is a victim of irreversible talaq with another manin the name of marriage, so as to enable the first husband to remarry such divorced woman. In reality the purpose behind the practice of Nikah Halala was to make it difficult for the impulsive manwho pronounces talaq upon his wife, to get his wife back into marriage. Thus, the procedure agreed for Nikah Halala must be followed without any pre-design. However, fairly recent incidents have come up to light unveiling the physical, psychological and financial exploitation of women in the name of Nikah Halala. This is done in the form of what is generally termed as Halala-fixing, where another man agrees to marry the woman, consummate the marriage and then divorce her in such hypothesis of the practice of Nikah Halala has placed itself in the category of one of the most heinous crimes under the Indian Penal Code i.e. Rape where the distraught female submits her body to be used as a plaything merely to pay for the insensitive pronouncement of talaq by her husband.

 

Offence of rape under the Indian penal code 1860

The definition of the offence of rape in Section 375 of the Indian Penal Code1860 comprisesof the act of penetration under certain circumstances which have been expounded under the seven specified descriptions. Among othersone of such circumstances is without her consent. Thus, a man is said to have devoted the offence of rape if the act of penetration has been done without the consent of the female. Some discernment to the term Consent is provided by thecoerced by her distant relatives, into the sexual act in the light of religious customs. Undeniably, she might not even oppose the sexual acthowever Explanation 2 to Section 375Indian Penal Code, 1860 does not even make such physical disagreement by the female a pre-requisite while defining the term consent.

 

The word Nikah Halala nowhere appears in the Holy Quran and thus refers to an un-Islamic transient Nikah obligated upon the wife who has been a victim of reckless pronouncement of irrevocable three divorces by her husband. The first two times the talaq is pronounced it may be withdrawn but the third time it is pronouncedthe divorce is irrevocable. To apply the effect of irrevocable talaq to her is to make her halal permissible for another man whereas she is haraam for the first husband and it is this nikah e halala which has been made haraam by Allah and His Messenger.

Nikah Halala is a practice followed by the Muslim community which stipulates that such divorced wife can only be allowed to remarry her first husband if she voluntarily agrees to marry another man and consummates the marriage with her second husband and then the man divorces her irrevocably.

In reality this practice is a manifest of the Quranic injunction wherein the husband who has irresponsibly pronounced talaq upon his wife sets up a pliable person to enter into a second marriage with his wife, consummate the marriage overnight and divorces her the next day so as to legitimatize her remarriage with the original husband in accordance to  the laws laid down in the Quran.

 

             A comparative analysis of Halala with the offence of rape under Indian penal code.

 

As more and more human rights disappear under the pressure of increasing fanaticism and traditionalism in many areas of the Muslim world the practice of halala is an extremely heinous and offensive to the honor of both the man and woman.

The manner in which this practice has been made in the contemporary situation is nothing but a dark glimpse at the Islamic state’s duty to rape in the name of religion.

It is a practice which is institutionalizing the degradation of women in the light of religion. Indeed,it will be a parody of Islamic religion, if the former husband posts the inadvertent pronouncement of irrevocable talaq, after realization of his mistake of abandoning his wife is allowed to stage manage a second marriage of his divorced wife solely to legitimize his remarriage with her.

It reduces a woman to a piece of amusement who can be deserted through impulsive utterances of Talaq and be bartered after a one-night stand with some stranger sifted out specifically for this purpose.

It is difficult to describe what a woman goes through emotionally, spiritually and physically in such a case.

In fact, such marriages have also been denounced by the Prophet itself.

The Nikah Halala has placed this Islamic practice in equitability with the offence of rape as defined under Section 375 of the Indian Penal Code 1860.

When the companion-less needy divorced wife, in contemplation of returning to her former husband and saving her marriage, moralities at nothing including her dignity and endures the coercive tryst supported by religion, it can sharply be etched as without her consent.

The definition of the offence of Rape under Section 375 of the Indian Penal Code1860 provides without her consent as one of the grounds under which the act of penetration by the male is made punishable.

Explanation 2 to Section 375defines the term consentas an unambiguous voluntary agreement wherein the willingness of the female to participate in the specific sexual act is clearly expressed  and discards the proof of absence of physical opposition by the female to the act of penetration as a test to determine  the consent of the female to engage into the sexual act.

Post the pronouncement of irreversible talaq, when the husband attempts to overcome the recognizedprinciples of divorcing his dutiful wife by his sincere penitence and elects to espouse the easy recourse to Nikah Halala to bring back his wife in marriage, the substitutes available for such divorced wife are exiguous.

When such divorced wife agrees to the obligatory one-night engagement solely for preserving her first marriage, it is difficult to resist and hold that she was acting of her own free will or with her consent. Consent being the exercise of a free and unrestrained right to forbid or withhold what is being consented to it is always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.

The essence of the offence of Rape under Section 375 of the Indian Penal Code, 1860 lies in the absence of consent of the woman and the practice of Halal-a especially the obligatory consummation of the second marriage so as to return to the first husband, also takes place without the consent or free will of the woman, hence drawing parallels between the offence of Rape and the practice of Halal-a.

It is here that the difference between consent and submission becomes important. An act of helpless resignation in the face of inevitable compulsions is not considered to be consent in law.

The cases of Nikah Halalaespecially when the female does not willinglyin the ordinary course of natureafter getting a divorce from her first husband engages into a second marriage it must fall within the definition of the offence of Rape.

There have been several incidents reported of the practice of Nikah Halala. As bad as it may sound, a number of religious scholars are offering themselves up for a one-night stand with a divorced Muslimwomanseemingly trying to save their marriages under a disputable Islamic law.

Hence, if the veil off the Nikah Halala is lifted, a coarse practice will be revealed which is primarily designed to exploitthe  women physically in the name of religion.

 

Conclusion

 

Islam is one of the greatest of world religions through the 1500 years of existence and has been by far the most misunderstood and misrepresented religion but the reason for this does not lie outside but it is only due to absolute ignorance of its own followers

Broadly, due to the non-codification of the Muslim laws the practice of Nikah Halala has also been widely misinterpreted. So much that Muslim divorced women are increasingly exploited every day andare  forced to get into a one-night stand with strangers so as to legitimize their remarriage with their first husband.

 

By : Swati Rai

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