Sharia, a much hated and confused term in the world, is the law that makes a part of Islamic jurisprudence. There’s no such book which defines Sharia totally. It is an interpretation of the Qur’an and Hadith by the scholars. Quran, as Muslims believe, is the book of God or the unadulterated words of God. Hadiths are the sayings of Muhammad, the Prophet of Islam (Prophet hereafter), which seek to explain laws given in the Qur’an or that left untouched. Scholars base their interpretations on fours sources; Quran, Hadith, Qiyas (analogical reasoning) and Ijma (consensus by the jury). The fact that Sharia is an interpretation by Scholars makes it a divisive concept and that happens to be a reason that there are numerous Schools of Thought in Islam with their own version of Sharia. One thing that must be understood is that just as Indian constitution carries most of the laws from British India; Islam has inherited most of the laws from Pre-Islamic Arabia, with some additions, omissions and reforms. And there is a concept of Ijtihad which means independent reasoning regarding the application of laws in different times and circumstances.
Supreme Court on 26th March 2018, agreed to examine the constitutional validity of Polygamy and Nikah Halala. Only last year, the premier court had quashed unilateral instant triple Talaq as unconstitutional. A new five-judge bench would be formed to look into the matter concerning Polygamy and Nikah Halala. These two practices, although not prevalent, must be outlawed and the Muslim community must initiate an internal process to do that.
Polygamy was a prevalent practice at the time of the advent of Islam in Arabia without a limit to the number of wives one had. This was due to the fact that women were in much larger number than men. A girl because of her biological immunity tended to survive infancy more than a male child. In fact, many people in Arabia were involved in female infanticide which Qur’an outrightly rejected as an evil and inhumane practice
“And when the girl [who was] buried alive is asked. For what sin she was killed.” (Quran 81:8-9)
“And do not kill your children for fear of poverty. We provide for them and for you. Indeed, their killing is ever a great sin.” (Quran 17:31)
(The second verse is incorrectly used by many Family-planning deniers without understanding the context.)
Other reasons for such a high sex ratio were the frequent tribal wars and men getting killed while travelling in deserts for business and with diseases. Prophet’s father himself was killed in such a journey even before the Prophet was born.
Considering the situation at the time, it explains how a society, where polygamy was prevalent, was balanced in terms of matrimony. The condition was such that people married in multitude and in doing so they couldn’t provide everyone equally. Islam had put a restriction on the number of wives a man can have, along with putting a necessary condition of equality. As quoted in Chapter 4 Verse 3 & 4
“If you fear that you might not treat the orphans justly, then marry the women that seem good to you: two, or three, or four. If you fear that you will not be able to treat them justly, then marry (only) one”
In fact, the above verses insist on marrying orphans who couldn’t be provided for, and in some Hadiths Prophet also insisted on marrying widows and divorcees, of which his own life is exemplary. Also, a woman who is to marry has right to demand her husband to remain monogamous by putting the clause in the marriage contract.
Although in India polygamy is not a very prevalent practice among Muslims, the condition in India begs a ban on it. According to the 2011 census, the sex ratio in Muslims wasn’t found to be good; there are only 951 females per 1000 males in the community perhaps because of the sex-selective abortions. Also, according to Sachar Committee and Ranganath Mishra Commission reports, economic status of Muslims is very weak. Looking at the current condition of the Indian Muslims, it perhaps calls for an Ijtihad to ban polygamy which would be in Muslim community’s own interest.
Although Islam considers a Nikah or a marriage as a contract, it is haram or prohibited to perform a contractual marriage (which is for a limited period of time). Only the legal form of Nikah would be the one which involves the commitment to spend the whole life together. Divorce is valid in different circumstances, which cannot be planned before a marriage; Muslims consider divorce as the most abhorred to God among Halal things in Islam. Among the many practices which are considered as Haram in Islam is Nikah Halala. Nikah Halala is a practice which requires a woman to marry some other man for a period of time before she goes back to marriage with her previously divorced husband. Many Sunni Muslims from Hanafi School of thought put a verse from Qur’an in support of Nikah Halala i.e, “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. And if he has divorced her [for the third time], then she is not lawful to him afterwards 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 (2:229-230)
It so happened that women were harassed with frequent divorces, and thus to end the practice and that the divorce be taken seriously above verse were included in the marriage laws. Irrevocability of divorce after the third pronouncement puts the bar on the practice of divorce in which a woman has to go through mental torture. So, the divorce limit is set upon at maximum three after which they cannot remarry unless of course the above given conditions. Above verses are also incorrectly used in support of Instant triple talaq when it’s clear that it ordains the rulings about three separate Talaqs. Also, the above verses don’t relate to Khula – which is a divorce from the woman’s side.
Nikah Halala, as done by Muslims in South Asia and its diaspora in West (the case recently created controversy in Britain), is the one in which after a Triple talaq (now outlawed in India), a woman is married to some other man for a small period of time in order to remarry her previous husbands. Many people using this regressive practice abuse the divorced women sexually and financially. There are many people (mostly religious figures) charge a fat sum of money for Nikah Halal.
As Islam considers a contractual marriage illegal, it is apparent that Nikah Halala would also be considered illegal. This despicable practice was even abhorred by the Prophet and his saying goes as, “Cursed be the Muhill and the one the Muhallal was done for.” (Tirmidhi: 1119). Here, Prophet cursed the Muhill (the one who does Halala) and the one it was done for. Even Umar, the second Rashidun Caliph and a foremost companion of the Prophet is reported as saying, “By Allaah, no muhallil or muhallal lahu will be brought to me but I will stone them.”
The above discussion reveals that Nikah Halala is an un-Islamic practice and thus cannot be considered as a part of Muslim Personal Law. This evil not only takes away the religious right of women but also the fundamental rights given to her by the constitution, which reserves the right of dignity to all Indians, women and men, alike. Supreme court in its sanity must ban this.
Hanzala Aman is a columnist writing for HW News Network. The views, opinions, positions or strategies expressed by the authors and those providing comments are theirs alone and do not necessarily reflect the views, opinions, positions or strategies of HW News Network or any employee thereof. HW News Network makes no representations as to accuracy, completeness, correctness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use.