Nikah Halala – In the nature of adultery?
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Under the Muslim personal law, a Muslim man is allowed to have more than one wives. A wife, once divorced, may be taken back into marriage by her husband after performing the ritual of Nikah Halala. Nikah Halala involves the cohabitation between the said wife and another man. The practice of indulging in a sexual act with the wife of another constitutes adultery. Prior to 2018, it was a punishable offence under the Indian Penal Code. Ques: Whether Nikah Halala constitutes an act along the lines of adultery? Why, or Why not?
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According to Section 497 of the Indian Penal Code,1860 says that if the wife of the husband maintains sexual intercourse with any other married man without his wife and her husband knowing or giving consent to it, is guilty of adultery. Such sexual intercourse does not amount to rape but punished with imprisonment which may extend up to 5 years or with a fine or with both. According to the law, the wife is not punishable as an abettor. In 2018, the Supreme Court declared adultery is no longer a criminal affair.
Nikah means “marriage” and halala means to make something “halal” or “permissible”. Nikah halala is a practice in which a husband gives divorce to her wife by announcing talaq, talaq, talaq (triple talaq). In order to work on this marriage, the husband makes her wife consume the other marriage, seek a divorce, and then remarry the former husband. This is a lawful way to marry the former husband.
In Quran, the husband can marry four times in order to maintain the wife and the children equally. If fails, then only one to be maintained. If the husband gives talaq to the wife, he has to go through the above process in order to not say the word “talaq” thrice. This reason will fear the husband and will cease to announce triple talaq casually.
No, adultery and nikah halala is not similar to each other. Adultery is consummated behind the husband’s back with another man whereas the nikah halala is consummated to remarry the former husband. Adultery is extramarital sex whereas Nikah halala is re-marital sex with the former husband. Adultery is by wife desire whereas Nikah halala is by the husband announcement.
The Quran says once a woman is divorced she becomes Haram (Forbidden), yet there stands no sanction for such marriage in the Quran.
As per the law, Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of adultery.
And in Nikah Halala, the woman has been divorced by her husband (legally) and then she she marries another man, consummates the marriage (legally) with that person, and gets divorced again in order to be able to remarry her former husband.
So, it does not get along the line of adultery, as she did not develop any sexual relationship with a man out of her legal marriage.This title aptly & subtly tends to describe the monstrous practice of Nikah Halala, prevalent in Islam. Islamic scholars have often mentioned in their studies that Nikah Halala as a practice has never been approved by the Quran or by the Prophet, in fact it has been judiciously disapproved. The practice is nothing but a wife’s journey from a Haram, who is forbidden for the husband technically due to husband’s refusal to stay in the marriage and pronouncing divorce, to Halal, who is permitted to enter into the marital status with the formerly divorced husband. This conversion of status of wife involves marrying a temporary stranger, followed by sexual intercourse, furthering to a divorce to marry the original husband. A point to remember, this harrowing journey has to be undertaken by the wife, who is put in this saddening situation by the Husband.
I refuse to compare Nikah Halala with Adultery as the two have no similarity whatsoever, the nature of the two go their separate ways. Any definition of adultery clearly defines it as a voluntary act, which is not so in case of Nikah Halala, which rarely is a voluntary act. Furthermore, section 497 IPC points out that adultery is an act of sexual intercourse with the wife of another, but in case of Nikah Halala, technically the woman is no longer the wife of the original husband, she indulges or rather is forced to carry out the consummation of marriage with a stranger, with sole purpose of remarrying her husband, so the marriage is no longer in continuation when there is consummation with another man outside of marriage.
Transgressing from the point in question, Nikah Halala can rather be equated to the practice of prostitution or rather Trafficking, the nature of the two being quite similar. This can be said as there have been cases where the practice of Nikah Halala involves monetary trade, where the temporary so-called groom is generously compensated for the ‘services rendered by him’. This grotesque practice forces us to think of the woman as a chattel who is irreparably & irrevocably entangled in the vicious cycle of haram and halal.Section 497 can defined as sexual intercourse with the wife on an another man where the man is already married to someone else. Such a person shall be punished with imprisonment which may extend up to 5 years or with fine or with both. According to the law the wife is not punishable as an abettor. But in 2018, the Supreme Court stuck the provision stating adultery is no longer a criminal offence.
When the person who is already married and yet marries some other person, he is said to commit the offence of bigamy. A second marriage becomes an offence when the first marriage is said to be valid and when there is solemnization of second marriage. The remedies for such offence include divorce, Injunction, Petition for maintenance and Declaratory Suit.
No, a Muslim man cannot be charged for third marriage in general as according to the holy book Quran, a Muslim man can have up to four wives, but the condition is he must be able to maintain the wife and the children properly, and if he cannot then he is not allowed to have more than one wife.
No, Nikaha Halala is not adultery according to a provision in Muslim law in which when a woman after getting divorced by triple talaq, marries another man, consummates the marriage and gets divorced again in order to be able to remarry her former husband. Nikaha means marriage and Halala means to make something permissible. It’s just the law which allows a woman to remarry her first husband and is not related to adultery.Nikah is marriage and Halala means to make something permissible and Nikah Halala involves the woman marrying someone else, consummating the marriage and then getting a divorce after which she is able to remarry her former husband. Nikah Halala is also known as taheel marriage. This is a practice in which a woman after being divorced by triple talaq has to remarry and consummates the marriage in oreder to remarry her former husband. Adultery and Nikah Halala are two different concepts and they are not similar to each other adultery on one hand means voluntary sexual intercourse between a married person and a person who is not their spouse, this is illegal, on the other hand Nikah Halala is a practice which is to be performed in order so that the divorced wife can return back to her former husband. Adultery is by wife’s desire and her own wish that she is willingly and by her own choice consenting to sexual intercourse with other person knowing that he is not his spouse whereas Nikah Halala is basically re marital sex which is to be performed. The voluntary sexual intercourse by a married person with someone other than his or her spouse is termed as adultery. The consent of both the parties and penetration are required for adultery to exist. Nikah Halala is a law that requires a woman to marry and consummate the marriage with another man to return to her first husband. In Islam a muslim man has the liberty to divorce and remarry the same woman twice but if he dissolves the marriage for the third time then the woman has to go through marriage with another man and consummate it and then seek divorce from him and only then she could return to her former husband she has to fulfill this criteria which has been laid down by Islamic law to marry her former husband again. Adultery on the other hand is against the husband’s will or he is not even aware about this act of his wife and in Nikah Halala the husband is aware about the criteria which has to be fulfilled by his wife so that she could return back to him.
To answer the question let us start by first understanding what Niakah Halal and Adultery is.
Nikkah Halal is a practice of the Muslim community wherein a man who has divorced his wife twice cannot remarry her unless she temporarily marries someone else, consummates, divorces that person and observes three-month separation period known as Iddat.
According to section 497 of the IPC, “A man who has sex with a woman who he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.” The man committing such an offence can be imprisoned for 5 years or more and can also be asked to pay fine.
In the practice of Nikkah Halal the former husband is aware about the sexual intercourse between former wife with another man and in a way consents to it. Whereas in the practice of Adultery the husband is not aware and doesn’t consent to the sexual intercourse between the wife and another man. And in such case the man can be imprisoned and fined according to section 47 of IPC which is not a criminal offence and declared unconstitutional by Supreme Court of India.
But both the practices deprive and destroys the dignity of women. In the practice of Adultery, the consent of husband is important and not of wife. The husband is considered the master of wife. Similarly, in Nikkah Halal the wife is supposed to marry and have sexual intercourse with another man, her consent or decision is not considered. India is a democracy and equality is governing principle of a system. No citizen of India can be discriminated and women must be treated equally.
From the above discussion we can conclude that the practice of Nikkah Halal and Adultery are not same but both practices consider women secondary and do not treat them equally.Nikah Halala doesn’t constitute an act along the lines of adultery. For adultery to take place the woman should be the wife of another man. And while she is married she has sexual intercourse with a person other than her husband. Another point to be noted here is that for adultery to take place the woman should establish such sexual intercourse without the consent or connivance of her husband. In the process of Nikah Halala, the wife is a divorced wife. If then she establishes sexual relations with some other man it would not constitute adultery because to attract adultery the woman should be a married woman having a husband. Also, Nikah Halala is a process by which a muslim woman may be taken by her husband. In order for her husband to take her back as his wife she has to perform the ritual of Nikah Halal. Nikah Halala involves the cohabitation between the said wife and another man. Here the relationship which the wife establishes is with the consent of the husband, in order for the husband to take her back as his wife. Because of the above stated two reasons Nikah Halala would not be an act along the lines of adultery.
According to Section 497 of the Indian Penal Code, a husband has the exclusive authority to punish the person with whom his wife committed adultery by having sexual relations with him. On the basis of adultery, the husband might also seek for divorce from his adulterous wife. A wife, on the other hand, does not have the same right to prosecute the woman with whom her husband has committed adultery. Second, the clause did not provide the woman the right to bring an adultery suit against her husband.
Islam dictates that a Muslim man has the liberty to divorce and remarry the same woman twice. However, if he decides to dissolve the marriage for the third time, he can only remarry the same woman if she first marries another man, consummates the marriage, and only if the man dies or willingly asks for divorce, can the woman go back to her first husband and remarry him.
Samina Begum who has fought case against triple talaq in Supreme Court which ultimately declared unconstitutional, has also said that nikah halala is akin to rape and polygamy, a humiliation for women. Like triple talaq, she believes these 2 must have no place in 21st century India, not least through religious sanction.
In modern India these type of religious laws like nikah halala has been misused and manipulated. In 2016, a Muslim women claimed that her husband’s friend raped her because he lost his wife to his friend in a gambling game therefore had to divorce her. Now in order to get back her he asked his friend to sleep with his wife so as a part of nikah halala her husband could take her back.
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