INTRODUCTION
Although the Indian judiciary has successfully abolished most patriarchal religious practices prevalent in our society, surprisingly, some remain outside constitutional jurisprudence despite having considerable adverse effects on women’s dignity and autonomy.
Nikah Halala is one such constitutional blind spot that has somehow managed to remain in the shadows, neither fully validated nor invalidated, despite widespread criticism, in a country that prides itself on constitutionalism and the promotion of gender justice. This raises questions about the limits of religious freedom and the reluctance to legislate in the field of personal law. This blog examines Nikah Halala from a socio-legal and constitutional perspective.
WHAT IS NIKAH HALALA?
In Islam, Nikah means marriage and ‘halal’, derived from ‘halal’, means permissible.[1] A divorced woman becomes ‘halal’ (lawful) again for her husband after nikah halala.[2] Islamic jurisprudence (fiqh) states that a Muslim man can divorce and revoke it twice at any time during the waiting period (‘iddah, three consecutive menstrual cycles). The divorce finalises only after the waiting period has passed. After a “minor” divorce (al-baynuna al-sughra), the couple may remarry.[3]
However, if he decides to divorce for the third time (“major” divorce, al-baynuna al-kubra), he can remarry her only after Nikah halala has been performed.[4]
Nikah halala (tahleel) is a practice in Islamic law wherein a divorced Muslim woman, who wants to remarry her former husband, who had divorced her irrevocably by Talaq-e-Bid’ah (triple talaq) must first marry another man, consummate that marriage, have that marriage dissolved (only if the man dies or willingly asks for divorce), then complete the mandatory waiting period (iddat) before she can remarry her original husband.[5]
The term “nikah halala” itself does not appear in the Quran but comes from an interpretation of Surah Al-Baqarah (2:230) of the Qur’an, which states :
“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.”[6]
Originally, intended to prevent hurried divorces by making remarriage a serious decision, this practice today deviates from its religious intent. Many Islamic scholars, including those from Darul Uloom Deoband, have condemned the misuse of Nikah Halala, stating that it is haraam (forbidden) if used manipulatively.[7]
Cultural misinterpretations and patriarchal influences have led to coerced or commercialised Halala arrangements, where women are forced to marry strangers, sometimes for substantial fees, to “purify” them for remarriage to their first husbands.
The commercialisation of Halala has emerged as a disturbing development in recent years. Undercover BBC reporters in 2017 exposed underground networks of imams in the UK charging up to £2,500 for Halala services, often promising same-day divorces. India Today reported similar underground markets in Uttar Pradesh, Delhi, and Bihar.[8]
HALALA AND THE JUDICIARY’S RELUCTANCE
While the Supreme Court held triple talaq unconstitutional in Shayara Bano v Union of India,[9] emphasising that personal laws must align with constitutional morality and fundamental rights, it did not touch upon Nikah Halala, a direct result of triple talaq.
Despite several pending PILs before the Supreme Court challenging Nikah Halala and polygamy, no decision has been reached, possibly due to fear of backlash from religious communities. In Sunita Tiwari v Union of India,[10] though the matter has been referred to a Constitution Bench, substantial hearings have been repeatedly postponed, reflecting the broader tension between judicial activism and majoritarian religious sentiments.
CONSTITUTIONAL CONFLICT: RIGHTS VS. RITUAL
Article 25 of the Indian Constitution guarantees all citizens the right to freely profess, practise, and propagate religion. However, it is not absolute. It is subject to public order, morality, health and other fundamental rights.[11]
Opponents of reform claim that state interference in Muslim personal law amounts to a majoritarian imposition. However, gender justice is not a Hindu or Western concept. It is enshrined in the Indian Constitution. Article 15(3)[12] empowers the state to make special provisions for women and children, even if such provisions seem to restrict equality.
Just as the Sabarimala judgement allowed women entry into temples by rejecting biological essentialism,[13] the same must be applied to Nikah Halala. Therefore, Muslim Personal Law, while protected under Article 25, is not beyond judicial review under Articles 14 (Right to Equality), 15(Prohibition of Discrimination) and 21 (Right to Life and Dignity).[14]
Articles 14 & 15: Women are denied equal protection as a result of this practice. The requirement of a woman to marry and get divorced by another man before she can remarry her ex-husband, while there exists no such compulsion for the male, clearly discriminates based on gender.
Article 21: It commercialises women’s bodies, reducing marriage to a sexually suggestive formality while women are forced to sleep with strangers to fulfil a religious mandate in many cases.
Right to privacy and bodily autonomy(Article 21) as maintained in K.S. Puttaswamy vs State of India[15] is violated when she is directly or indirectly coerced/socially pressured into having non-consensual sexual relations under religious pretexts. This not only violates her dignity but also verges on state-sanctioned sexual violence especially when viewed against ongoing debates on criminalizing marital rape.
In many cases, the Halala husband refuses to divorce the woman, trapping her in a second marriage against her will, which is a violation of both constitutional rights and Islamic law, which requires intention and consent as fundamental pillars of marriage and divorce.
INTERNATIONAL PERSPECTIVE
Interestingly, the practice has been restricted or regulated in many Muslim-majority nations, including Tunisia, Egypt, and Pakistan.
In Egypt, court proceedings and attempts at reconciliation are mandatory before the finalisation of divorce.[16]
By abolishing polygamy and formalising a legal divorce process, Tunisia’s Code of Personal Status (1956) effectively eliminated halala and the scope for unilateral divorce.[17]
Pakistan’s Muslim Family Laws Ordinance(1961) indirectly addresses the halala issue as it does not recognise instant talaq.[18]
The 2004 amendment of the Moroccan Family Code (Moudawana) abolished premeditated Halala and severely restricted divorce.[19]
All divorces must be registered and approved by the Shariah court in Malaysia, which has significantly decreased instances of arbitrary divorce and subsequent halala.[20]
This shows that Nikah Halala is not integral to Islam, but rather a cultural distortion. This proves that religion and reform can coexist within constitutional frameworks respecting dignity and justice, as observed in the Indian Law Commission 2018 consultation paper.[21]
REAL-LIFE TESTIMONIES
Sameena Begum Case (Delhi, 2018): After her husband pronounced her triple talaq, Sameena Begum, a Halala marriage fraud victim, was forced into Nikah Halala with another man to “make her lawful” for him. She filed a petition in the Supreme Court arguing that Nikah Halala and polygamy violated her fundamental rights under Articles 14, 15, and 21. She also alleged that Nikah Halala often lacked true consent and thus constituted rape under Section 375 of IPC.[22] In response to her petition, the Supreme Court sent notices to the Government of India, NHRC, and other organisations, setting up a five-judge bench to hear the case.[23]
Shabnam Rani’s Acid Attack (2018): On September 13, 2018, soon after she filed her petition against Nikah Halala in the Supreme Court, Shabnam Rani was attacked with acid by her community members,[24] highlighting the severe backlash women who publicly challenge religious patriarchy face from conservative community members.
Gambling Bet Exploitation (October 2016): In a disturbing incident, a Muslim woman was divorced by her husband after he “lost” her in a gambling bet and got her married to his friend under the pretence of Nikah Halala, with the understanding that he would divorce her afterwards to allow her to return to her husband. However, the friend took advantage of the situation and raped her.[25] This case shows how women are treated as objects in transactions without their consent, demonstrating how Nikah Halala is manipulated for abuse.
THE REFORM PERSPECTIVE
Several contemporary Islamic authorities have called for reform of divorce practices. The All India Muslim Personal Law Board, while generally conservative in its approach to personal law reform, has acknowledged problems with contemporary halala practices. Former AIMPLB member Maulana Kalbe Sadiq observed:
“The practice of pre-arranged halala marriages is un-Islamic and represents a corruption of the Quranic guidance. Such arrangements degrade women and cannot be justified from any authentic Islamic source.”[26]
The resistance to Halala has also come from groups like BMMA and Saheli Trust, calling to end this practice and codify the Muslim personal law in a gender-just framework.[27]
The “essential religious practices” test, developed in Supreme Court jurisprudence, The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) which states that only practices that are “essential and integral” to religion come under constitutional protection under Article 25[28], is a critical factor in constitutional challenges to nikah halala.
Given the internal religious criticism of the practice, similar arguments are being made regarding nikah halala, arguing that it is a later jurisprudential development rather than a fundamental religious practice.
CONCLUSION
Nikah Halala is not just a religious provision, it is a lived trauma for women forced to pass through layers of legal, social, and spiritual humiliation just to return to the person they once called home. It is important to note that without women’s equality and dignity, there can be no true religious freedom. Thus, reform must not be seen as an attack on faith but as an act of faith in the Constitution. A faith worth believing in should never come at the cost of a woman’s dignity and no woman should have to be passed from one man to another just to “earn” the right to be with her husband again.
Author(s) Name: Nandini Shaw (Calcutta University, Jogesh Chandra Chaudhuri Law College)
References:
[1] M H Kamali, A Shari’ah Dictionary (Ilmiah Publishers 2008) 112.
[2] The Qur’an 2:230 (M A S Abdel Haleem tr, Oxford University Press 2004).
[3] Werner Menski, Islamic Law in the Western World (Oxford University Press 2006) 231.
[4] The Qur’an 2:230 (M A S Abdel Haleem tr, Oxford University Press 2004);
Sahih al-Bukhari, Book 68, Hadith 2639 (Muhsin Khan tr, Dar-us-Salam 1997).
[5] Werner Menski, Islamic Law in the Western World (Oxford University Press 2006) 231.
[6] The Holy Qur’an, Surah Al-Baqarah (2:230).
[7] Mohd Dilshad, “Arranged” Halala Shameful and Un-Islamic: Darul’ The Times of India (Meerut, 22 October 2018)
https://timesofindia.indiatimes.com/city/meerut/arranged-halala-shameful-and-un-islamic-darul/articleshow/66310544.cms accessed 26 May, 2025
[8] Sushant Pathak and Jamshed Adil Khan, ‘Exposed: How Maulvis Take Money for One-Night Stand with Divorced Women Trying to Save Marriage’ India Today (16 August 2017)
https://www.indiatoday.in/india/story/nikah-halala-islamic-scholars-one-night-stand-divorced-muslim-women-marriage-1029887-2017-08-16 accessed 26 may, 2025
[9] Shayara Bano v Union of India (2017) 9 SCC 1.
[10] Sunita Tiwari v Union of India, WP (C) No 231 of 2018 (SC)
[11] Constitution of India 1950, art 25.
[12] Constitution of India 1950, art 15(3)
[13] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1
[14] Constitution of India 1950, arts 14, 15, 21.
[15] K.S. Puttaswamy v Union of India (2017) 10 SCC 1.
[16] Law No. 1 of 2000 (Egypt), as discussed in ‘Constitutional protection of Egyptian women’s rights in personal affairs’ (2023) Cogent Social Sciences
[17] Tunisia, Code of Personal Status, Law No. 66–154 of 1956
[18] The Muslim Family Laws Ordinance 1961 (Pakistan), s 7.
[19] The Moroccan Family Code (Moudawana) 2004, arts 71–83.
[20] Malaysian Islamic Family Law (Federal Territories) Act 1984, s 47.
[21] Law Commission of India, Consultation Paper on Reform of Family Law (2018)
[22] Indian Penal Code 1860, s 375
[23] Sameena Begum v Union of India, Writ Petition (C) No 222 of 2018 (SC).
[24] Express News Service, ‘Acid Attack on Nikah Halala Petitioner Shabnam Rani: Supreme Court Notice to Centre, State on Plea for Security’ The Indian Express (New Delhi, 14 September 2018) https://indianexpress.com/article/india/acid-attack-on-nikah-halala-petitioner-shabnam-rani-supreme-court-notice-to-centre-state-on-plea-for-security-5356074/ accessed 27 May 2025.
[25] Hindustan Times, ‘Jaipur Woman Files Rape Charges Against Husband’s Friend After Forced Halala’ (27 August 2019) https://www.hindustantimes.com/jaipur/jaipur-woman-files-rape-charges-against-husband-friend-after-forced-halala/story-FV72pSsyPnTiPtQY4h1X6O.html accessed 27 May 2025.
[26] Maulana Kalbe Sadiq, ‘Contemporary Challenges to Muslim Personal Law’, speech delivered at Aligarh Muslim University,
[27] Bharatiya Muslim Mahila Andolan, Seeking Justice Within Family: A National Study on Muslim Women’s Views on Reforms in Muslim Personal Law (BMMA 2015); Saheli Women’s Resource Centre, Against Nikah Halala: A Feminist Statement (Saheli Trust 2018) http://www.saheliwomen.org accessed 28 May 2025.
[28] The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) SCR 282.
