SC to examine validity of polygamy and nikah halala: All you wanted to know about the practicesindia Updated: Mar 26, 2018 15:20 IST
A 2017 file photo of activists of Joint Movement Committee protesting on the issue of 'Triple Talaq' in New Delhi. (PTI)
The Supreme Court on Monday agreed to examine the constitutional validity of the prevalent practices of polygamy and ‘nikah halala’ among Muslims and sought responses from the Centre and the Law Commission.
The court will also consider validity of less common practices such as Nikah Mutah or Nikah Misyar, types of temporary marriages permissible within certain sects among Muslims.
What is nikah?
In Islam, marriage or nikah is a social contract between a man and woman, where both sides can stipulate conditions. Both parties need to willingly consent to the marriage, and sign the contract in the presence of witnesses. There are certain conditions that are mandatory, such as the husband settling an amount of money as ‘mehr’ on the wife, which is a token commitment of the husband’s responsibility and may be paid in cash, property or movable objects to the bride herself.
The marriage contract in Islam is not irrevocable and it can be broken through divorce or talaq.
What is polygamy within Islam?
Under Islamic jurisprudence, men are permitted, under specific circumstances, to marry up to four wives at one time. Islamic law states that a man can marry more than one woman if he has the financial resources to maintain all wives and their children and behave with complete justice and no favouritism to all. It is not mandatory, but permissible for those who can afford it. Polyandry, the practice where a woman can have more than one husband, is not permissible.
What is Nikah Halala?
Islamic law says that a Muslim man can divorce and remarry the same woman twice. However, if the marriage is dissolved for the third time, it will only be ‘halal’ for both to remarry after the wife first marries another man, consummates the marriage and if the other man willingly divorces her or dies.
If any step of this process is not observed, the halala is not valid. The provision was brought in to stop the practice of men marrying, divorcing and then remarrying the same woman at whim, but it is widely misused with clerics offering ‘halala services’ and women being forced to sleep with strangers to save their marriages.
What is Nikah Mutah?
Nikah Mutah refers to a type of temporary marriage practiced by certain sects within Shia Islam where both parties agree to a private and verbal marriage contract, agreeing to the duration of marriage and the mehr amount. There is no stipulated time for the duration of the ‘marriage’ – it can last from a few minutes to months. At the end of the contract, the wife must observe a period of abstinence known as iddah. Any children born of a Mutah marriage have the same rights as the man’s children from a legal marriage.
Nikah Mutah was known as the ‘traveller’s marriage’ where men who went on long journeys or wars “married” women they were sleeping with. Many Islamic scholars view Nikah Mutah as prostitution.
What is Nikah Misyar?
Nikah Misyar is a type of marriage practiced by some sects within Sunni Islam where both parties agree to forego several marital rights such as living together, the wife’s rights to housing and maintenance money, and the husband’s right to homekeeping and access. Both parties need to consent to the contract, agree to the amount of mehr, and sign it in the presence of two witnesses.
A Misyar marriage contract is not temporary, since there’s no expiry date affixed to it. It was practised by travellers, divorcees and widowed people. While some Islamic scholars say this kind of marriage is permissible because it fulfils conditions of marriage within Sharia, others forbid it on the grounds that it is purely for sexual gratification.
What is Talaq?
Talaq refers to divorce under Islamic law. Under Islamic law, there are three types of divorce: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat.
Talaq-e-Ahsan is the most ideal way of dissolving a marriage. ‘Ahsan’ means best or most proper. Under Talaq-e-Ahsan, the husband must pronounce divorce in a single sentence when the wife is in a state of ‘purity’, that is, free from her menses. The wife has to observe a period of iddat, which is usually three monthly courses, after talaq is pronounced. During the iddat period, divorce is revocable.
Under Talaq-e-Hasan, which is a ‘proper’ way to divorce but not as good as Ahsan, the husband pronounces talaq three times spread over three monthly courses. The divorce is revocable during those months.
Talaq-e-biddat is considered undesirable and a ‘sinful’ in Islam, yet considered valid under Sharia law. This kind of instant divorce is not the norm within Islam, but a rarity.
Biddat means sinful innovation – this form was introduced by Ommeyad kings in order to circumvent the law. Under this form of divorce, the husband pronounces talaq thrice in one sitting. Divorce is instant and becomes irrevocable immediately when it is pronounced, irrespective of iddat. Thus, once pronounced, it cannot be revoked.