Can A Muslim Divorced Couple Marry Again?

India, at present the most populous country after China. India is a secular democratic nation, and there is the freedom to practice any religion. Almost every major religion i.e. Hindu, Muslim, Christian, Sikh etc. are practised in the country. Therefore ceremonies and rituals like marriage, divorce etc. are done in accordance with the personal laws of their respective religion. For those who don’t want to marry in accordance with their personal laws, there is Special Marriage act, 1954, and their all matters related to marriage will be dealt under the same. The Muslim personal law (SHARIAT) Application act, 1937, is the statute which governs the Muslim personal laws. After independence, many activists or nationalist were vocal about reforming the personal laws of the country. A principal motive was to rectify the gender inequities that pervaded every one of the codes.1 But as considering the Muslim as a minority, no action is taken to reform or replace their personal laws by some new set of rules, as it was politically risky.

In this modern time when feminists are fighting for the equal status of the women as men in society, and people are becoming aware of their rights. As a result of this awareness, and having the knowledge that change in these pre-existing personal laws will cause resistance, they approached the apex court for removing the inequalities of the personal laws and they have been successful in seeking justice.

In the recent developments in the country related to personal laws matters gave rise to resistance to some extent. Some acts like Muslim women (protection of rights on divorce) was laid down by the honourable Supreme court of India2.

Marriage under Muslim Law:

Marriage in Muslims or Islam is known as “Nikah”. This is a civil contract between the bride and groom to live as a married couple. According to some school of thoughts, the prophet had said that the marriage for every fit person is a holy war and this is necessary to abide by the rules of religion. No one is allowed to practice singlehood or celibacy in Islam.

There are not any obligatory rules under Islam to solemnise marriage, but they can add any condition in the contract of marriage, which should be reasonable and not against the ethics of Islam. But there are definitely some requirements in order to complete the marriage i.e. there should be a proposal from the one side and acceptance of the same on the other side, mutual consent and soundness of mind is necessary, bride and groom should have attained the age of puberty and if they are minors then their parents/guardian should be of sound mind.

The kids born from a legally married couple will be legitimate. Husbands will have to provide the requirements of the wife and the children and will have to follow the conditions of the contract.

Generally, the Muslim Personal Law says to avoid divorcing their wives if she is faithful. As per the Muslim marriage laws, any party i.e. husband or wife can initiate for the divorce. But a woman married under Muslim law can initiate for the dissolution of marriage under Dissolution of Muslim Marriages Act, 1939, on the grounds specified in the act.

After the divorce, the Muslim women who have been divorced or have obtained a divorce is entitled to get the maintenance in the iddat period, and if she is unable to maintain herself after the iddat period, then she is entitled to have recourse to section 125 of the Code of criminal procedure,3 held in the Mohd. Ahmed Khan v. Shah Bano Begum.4

Nikah Halala, Triple Talaq, and recent Legal Developments:

In Muslim marriage law, widows and divorcees have the freedom to marry again. But when a divorced couple wants to remarry again then they have to follow the practice of Nikah halala, in which the women have to marry another man after the iddat period and after the consummation, they get divorced and then she can marry her previous husband.

However, Islam says that a Muslim man has the liberty to divorce and remarry the same woman twice, but if they dissolve the marriage for the third time then they have to follow the practice of Nikah Halala. This practice is explained by the Indian Muslim jurist Maulana Ashraf Ali Thanvi in “Bahishti Zewar”, a book on Islamic beliefs.

It is claimed that this concept was established by the prophet himself to put an end to the barbarous pre-Islamic practice in which the husbands used to divorce and marry her back many times to ill-treat her. By this rule, the prophet tried to put an end to the practice of ill-treating the women by divorcing and taking her back.5

Nikah Halala in which a woman marries or handed over by his divorcee husband to other man to marry on the condition that the latter would divorce her next day6, which is also known as Muta, Conditional marriage. However, Muta is considered a sin in Islam. This is also not permitted under sharia law.

In a recent judgement honourable supreme court of India established that Triple talaq cannot be treated as essential religious practice merely because it continued for long, and declared the practice illegal and set aside and also held that it is not protected under Article 25 as it is not essential religious practice.7

Recently All India Muslim Personal Law Board filed a petition in the supreme court to oppose the public interest litigation filed challenging the validity of the practices of nikah halala and polygamy8. The board said that the same type of petitions has been dismissed by the honourable supreme court in the past. Although polygamy is not permitted in India except the Muslim community, because of the Muslim Personal Law (Shariat) Application Act, 1937, and these practices are permitted for Muslims.

Conclusion:

In India the Muslim divorced couple can marry again, there are no such restrictions but the process which allows them to marry again is considered very inhuman by most of the people from different religions and even by some people of the Muslim community. Nikah halala, the process in which the divorced Muslim women will have to marry other man and get divorced to remarry the previous husband is very cruel in nature, even this is considered as a sin in the Shariat law. Some reports suggest that the nikah halala is also used to exploit the women in different ways like some time they have to pay some heavy amounts for conditional marriage and some other types of cases have also been reported.9 Many human right activists and people of different communities are showing their concern and fighting to curb this practise in order to restore the dignity of the women. Also, this is discriminatory on part of the women, as only they have to suffer through the whole procedures of Nikah halala.

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