Halala Marriages in Pakistan: A Feminist Critique

Introduction:

Under Islamic law, marriage or “nikkah” is a contract that is entered into by both the parties i.e. a man and a woman by their consent. This contract has both legal as well as religious aspects attached to it, which make the contract binding on parties. For a valid nikkah, four conditions need to be met. These are as follows:^[1]

1. A mutual offer and acceptance by both the man and the woman
2. Entered into with free consent of the parties
3. For an indefinite period of time
4. The parties must not be related to each other by blood, fosterage or affinity

However, Islam (unlike Christianity or Judaism) does allow for the dissolution of the marriage between the spouses either in the form of talaq (pronounced by the husband) or in form of khula (which is exercised by wife with the involvement of court) and also allows for the remarriage of both the spouses after the dissolution. In Christianity, marriage is “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.”^[2] The idea of divorce does not exist in Catholic Church law. The only way the spouses can get separated is via annulment. Annulment is not equivalent to a divorce; rather it sets on the idea that the marriage was not valid in the first place.^[3] If you do get married after a civil annulment, you are not committing bigamy, as your new marriage is your only valid one. If you have already remarried, that is, you have married before an order of annulment was made by the court, your second marriage may have appeared invalid and bigamous.^[4]

Similarly, in Jewish law, divorce is allowed; however, it is only exercised by the man. The official divorce document called “get” is the only way through which the wife is officially free from her previous husband and can use the document as proof that she is not married anymore and therefore can contract another marriage.^[5] However, increasingly though, men do not provide this document to the women and as a result, they get stuck in the limbo where they are no longer living with their husbands but at the same time cannot marry another man as well because of non-provision of the get document.

In Islam, the right to pronounce talaq is an absolute one that resides with the husband. “Talaq is of three kinds:

 1) Revocable divorce ( talaq-i-rajaee ), in which the husband pronounces divorce once and at some later stage realizes that he made a mistake and decides to rescind the pronouncement unconditionally and resumes the normal spousal relationship;

2) Irrevocable divorce of minor degree ( talaq-i-bain sughra ), in which the parties if they both agree, can re-enter into the marriage contract;

3) Irrevocable divorce of major degree ( talaq-i-bain kubra) in which the husband cannot re-enter the marriage contract with his divorced wife unless she, after having married and establishing conjugal relations with her new husband, is divorced for some reason and is willing to re-enter into a marriage contract with her former husband.”^[6]

Halala is the situation where a divorced woman marries another man regularly with the solemn intention of living with him, but again, unfortunately, separates from him due to his death or divorce. She is then allowed under Islamic law to remarry her former husband if she so wishes.^[7]

 “And if he has divorced her [for the third time], then she is not lawful to him afterward 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.”^[8]

“And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows, and you know not.”^[9]

The aforementioned verses point to the fact that remarrying the ex-husband is allowed but does this mean halala should be with the intention to get divorced? Probably not. This article aims to explore the legal and social framework that governs the practice of halala in Pakistan and then view it from a feminist lens.

The practice of Halala in Pakistan

In Muslim countries including Pakistan, halala follows on from the infamous practice of triple talaq. Often, men who have pronounced the triple talaq in haste tend to repent but are told that their wife has to undergo a halala marriage if they are to remarry. Thus, the least women-friendly interpretation of the religious text is employed. Whilst there is a feeling of unease among ordinary Pakistani Muslims at the injustice of these supposedly Islamic laws, they find themselves unable to accept an alternative interpretation challenging this practice. The Muslim Family Law Ordinance (MFLO) 1961 attempted to address the situation by Islamizing the statutory procedure for the dissolution of marriage. The basic protection that s.7 of MFLO provided is the requirement that the husband follows a procedure for talaq by notifying the legal authorities. This procedure, without explicitly stating incorporates a form of divorce call talaq  e ahsan in s.7(3) that reads: “ Save as provided in subsection (5), talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of 90 days from the day on which notice under subsection 1 is delivered to the chairman.”^[10]

 That 90-day period is conterminous with a compulsory waiting period (iddat) during which the marriage is suspended but not terminated. By holding the husband to this period, after which the divorce becomes irrevocable, a man’s unilateral right to divorce is toned down and chances of reconciliation are kept alive until the waiting period has expired. Section 7(4) requires the parties to appear before an Arbitration Council during the 90 days to attempt reconciliation.^[11] Section 7(6) minimizes the requirement for an intervening halala marriage by the woman in cases where former spouses wish to remarry. It states that “ Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without any intervening marriage with a third person, unless such termination is for the third time-effective.”^[12]

In other words, lack of halala marriage is no bar to remarriage to the same husband if talaq has not been pronounced three times. Muslim women through the centuries have borne the brunt of need for halala resulting from a hasty pronouncement of the triple talaq.

 The MFLO, by providing a breathing space, resulted in respite for women from the humiliation of marrying another man simply to remarry the husband who had so summarily divorced her.

So here we have a seeming women-friendly article of family law legislation. Yet a review of reported case law from the Pakistani courts reveals just a few scattered cases on halala marriages and triple talaq but extraordinarily little learned discussion or challenges to the negative interpretations and meanings placed on these terms. By and large, courts engage in damage limitation to save the marriage as best they can.

In Attiq Ahmed Khan v Noor-ul- Saba, the Balochistan High Court declared that a single pronouncement of khul (upon declaration by a judge) does not constitute an irrevocable divorce and that the wife did not require a halala marriage in order to remarry her husband. This ruling, it may be noted, went beyond the position of classical Islamic law of khul (where a pronouncement by a judge makes it final and irrevocable).^[13]  In Ghulam Muhammad v The State a man who had divorced his wife became repentant and wanted to resume marital relations with her and revive their marriage. However, since he did not revoke the divorce within the stipulated period but has resumed sexual relations with her, they were accused of zina. The court decided that the divorce pronounced by the man had become effective and could not be withdrawn by him.^[14] Thus, the accused had not remarried the female co-accused and no halala had taken place, and cohabitation between the two after their divorce, therefore, amounted to zina. Their conviction of zina was maintained, but in light of their not being aware of the legal consequences of living together after non-withdrawal of the divorce, their sentences were substantially reduced.

Hence it can be seen that despite how oppressive the practice of halala for women is, it is still prevalent in Pakistan and the legal framework is insufficient to curb this repressive tradition.

Feminist Lens

The Quranic evidence of Halala clearly does not indicate towards an arrangement whereby events are planned to make the ex-wife permissible for her husband as practiced by the Muslim communities; rather it is talking about a possibility, however slight, which may arise over a natural course of time in an unplanned manner. According to the Quran, one of the purposes behind religious scriptures was to give females equality which is why the religion also asked for female infantilized to be banned. In light of all this, halala seems to be contradictory to the Islamic teachings. The original purpose of halala as a concept, according to al- Baqarah, was to deter men from abandoning and connecting with their wives according to their will.^[15] Another purpose of halala was to make sure that a woman’s dignity would be maintained and that she would not be forced to go back to an abusive and exploitative husband as per his wishes. The primary purpose of halala as recommended in Quran was to strengthen marriage as a sacred institution. Even though divorce is permitted, it is the least preferable in the hierarchy of permissible acts due to its social implications.^[16]

Unfortunately, it is quite easy to misconstrue moral religious laws that are interpreted by men. Halala is not an exception because even modern rights are misconstrued by those with unethical ambitions. An example of this can be observed in the way people use their freedom of speech to justify hate speech and the right to choose to impose tangible harm upon other individuals. In certain instances, the right to self-defense has also been similarly misused. This goes to show that the act within itself is not bad and does not justify immoral consequences intentionally, even though many manipulate the essence of it merely to justify their own misdeeds.

The current practice of Halala, therefore, appears to be a scam where an irrevocably divorced woman is married to a man who will divorce her soon after consummation. Such marriages have also been denounced by the Prophet: “Curse is upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.”^[17]

This goes on to show how the current practice of Halala violates Islamic law on many counts.  Scholar Kecia Ali criticizes those who interpret the texts of Islam based on these values without trying to explain why just as she criticizes those who explain the texts of Islam on the values of patriarchy and hierarchy without an effort to explain why.^[18]Kecia further draws an analogy of marriage to slavery and shows how are marriages seen as a commercial transaction ‘the overall framework of the marriage contract is predicated on a type of ownership (milk) granted to the husband over the wife in exchange for a dower payment, which makes sexual intercourse between them lawful. Further, the major spousal right established by the contract is the wife’s sexual availability in exchange for which she is supported by her husband’. Halala has a commercial nature where divorced parties end up requesting the imam of the local mosque to act as the ‘intervening’ husband in return of money who often obliges so the divorced wife can become lawful for her first husband. Kecia goes on to add that such interpretation of Islamic text is done by particular men living and thinking at a specific time. And this thinking was shaped by the assumption that the notion of marriage can be compared to slavery or commercial transaction. This analysis governs Muslim families and communities today. Hence there is a need for new jurisprudence because such change cannot be brought by stipulating contracts in the world of patriarchal injustice and inequality.^[19]

Unquestionably, the practice of halala also takes away the freedom of choice from the women and reduces their existence to merely being an object that is owned by one man and then the other.^[20] The deserted wife’s feelings as well as consent is totally disregarded as to whether or not she actually wants to marry another person, consummate the marriage and then remarry the previous husband. The woman’s sentiments are drowned by the attempts to gratify the needs of the men she gets married to or to save the ‘izzat’ of the family. This just goes on to show how easy it is for men to manipulate the law according to their own needs and dictate what women ought to do and rectify the situations, by sacrificing their dignity, caused by the men themselves. According to MacKinnon, “Such law not only reflects a society in which men rule women; it rules in a male way.”^[21] And consequently, women do not have freedom of choice due to the interweaving of patriarchy with the law as well as societal norms. This is because when such a divorced wife agrees with the (presumed) obligatory one-night commitment for the sole purpose of preserving her first marriage; it is difficult to argue and claim that she acted freely or with her consent. In cases of pre-fixed halala marriages, it becomes difficult to construe if the woman has an unconfined right to withhold the act into which she is dragged under compelling circumstances.^[22]

This further ties in with the idea of radical feminism that for females, private is public because the most inhumane treatment and subjugation of females happens in the most private and personal instances such as that of divorce and to make up for it, marriage in privacy. “For women, the measure of intimacy has been the measure of oppression. To see the personal as political means to see the private as public. On this level, women have no privacy to lose or to guarantee. We are not inviolable. Our sexuality, meaning gender identity, is not only violable, but it is also (hence we are) our violation. Privacy is everything women as women have never been allowed to be or to have; at the same time, the private is everything women have been equated with and defined in terms of men’s ability to have.”^[23]

Practices like halala have gained a new meaning and their sole purpose seems to only legitimize misogyny and practices like rape. Even though originally, these consequences may not have been intended, today halala is merely a sham, manipulated to justify the corrupt state. Islamically the idea that a husband, after giving a talaq, legitimizes his wife’s marriage to another man even though he wishes to make amends seems absurd. This seems to be at best an avenue to legitimize fornication and adultery and at worst a twisted justification of rape and consent-less marriages. Islam primarily focuses on principles like mercy, forgiveness, and human dignity. Thus, it does not seem plausible that the religion would violate the sanctity of marriage with such an endorsement. This devalues the purpose of a woman’s existence and narrows it down to merely being a sex slave bartered as others see fit. This commodification of a woman’s body along with the brutal way her choice is being stripped away seems to be reminiscent of the conditions of Arabia before the advent of Islam.

Conclusion

The law in Pakistan provides for the practice of halala in case the husband divorces the wife thrice and they decide to reconcile. Under Islamic law, the practice of halala is only allowed where it happens in the natural course of action, not when it is planned. However, as discussed, the practice of halala has been misconstrued and used in such a manner that is degrading for women. It has been turned into a commercial business, where a woman is married off to another person in exchange for money so that he can divorce her later and she could go back to her former husband. The practice of halala has been oppressing women for years and it is no solution. Such practices can result in women falling prey to exploitation, blackmail, and sexual abuse. This can even lead to the woman getting trapped in the halala marriage if the second husband defaults on his promise, leaving no course of action for the woman, either Islamically or legally. Furthermore, it can be observed that the woman (wife) is the only stakeholder in such practices, whose constitutionally protected fundamental rights are infringed upon such as Article 14 (right to inviolability of dignity) and Article 25 (equal rights to all the citizens and prohibits discrimination on the grounds of sex) of the Constitution.^[24] Women in India are already fighting against the practices of halala, whereas in Pakistan, this practice has never been questioned. Therefore, the abolishment of such abhorrent and anti-Islamic practices is really the need of the hour as it is not only disrespecting the women but also it is safeguarding evil in the name of religion. It is a high time that the State take steps and introduce a reform in the current legal framework through an Act of Parliament that adequately addresses this issue and ensures the provision of constitutionally protected fundamental rights to women.

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^[1]Z Abbasi and S Cheema, Family laws in Pakistan ,Oxford University Press, 2018. 30-31

^[2] The Catechism of The Catholic Church, ‘ The Sacraments at the Service of Communion ‘ Chapter Three <https://www.vatican.va/archive/ccc_css/archive/catechism/p2s2c3.htm> Last Accessed 20th June, 2020

^[3]Alicia Sloan, ‘Annulment: Divorce for Catholics? ‘ 87(345) Irish Quarterly Review, [1998]  51-56

^[4] ibid

^[5]  J Edgington, “Revelations: Jewish Divorce” (film, 2nd August 2009)<https://vimeo.com/6057689 > Last Accessed 21 June 2020

^[6]S Omar, ‘Dissolution of Marriage: Practices, Laws and Islamic Teachings’ [2007] 4(1) Pluto Journals 91-117.

^[7] ibid

^[8] Holy Quran, ‘Al, Baqarah’ chapter 2, verse 230 <https://quran.com/2/230>

^[9] Holy Quran, ‘Al, Baqarah’ chapter 2, verse 232 <https://quran.com/2/232>

^[10] Muslim Family Law Ordinance 1961, Section 7(3)

^[11] Muslim Family Law Ordinance 1961, Section 7(4)

^[12] Muslim Family Law Ordinance 1961, Section 7(6)

^[13]Attiq Ahmed Khan v Noor-ul- Saba, 2011 CLC 1211

^[14]Ghulam Muhammad v The State, 1994 PCrLJ 1856 FSC

^[15]Z Kalanauri, “Marriage, Divorce and ReMarriage Halala in Islam” (2017) 

^[16] ibid

^[17]R Gupta, ‘Abominable Rapes in The Name of NikahHalala: An Analytical Study of Halala With Special Reference to Rape Laws in India’ [2018] 3(1) International Journal of Advanced Research and Development 134-131

^[18]Kecia Ali, Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law,” in Omid Safi, ed., Progressive Muslims: On Justice, Gender, and Pluralism, Oxford: Oneworld Publications, 2003, pp. 163-89.

^[19] ibid

^[20] ibid

^[21] C Mackinnon , ‘Marxism, Method, and the State: Toward Feminist Jurisprudence’ [1983] 8(4) University of Chicago Press Journals 635-658

^[22]R Gupta, ‘Abominable Rapes in The Name of NikahHalala: An Analytical Study of Halala With Special Reference to Rape Laws in India’ [2018] 3(1) International Journal of Advanced Research and Development 134-131

^[23] Supra 21

^[24] Constitution of Islamic Republic of Pakistan, 1973