When Sabah Galadari, a wealthy Arab girl, married Pakistani singer Adnan Sami, living in Mumbai, she must have been blissfully ignorant of what a Muslim woman can face here in the name of a sanctified Muslim personal law. As the marriage ran into rough weather, naively believing that like in her native place Muslim law is in force here too in its pristine form, she entered into a divorce agreement.
Wooed by the estranged husband for a rapprochement, she remarried him two years later but finding herself in trouble again, approached a family court for relief. Hell-bent on denying her dues under Islamic law, the man contested the validity of their three-year-old re-marriage citing as his reason non-performance of halala (temporary marriage to someone else and consummation followed by talaq , supposedly required to legalise a divorced woman’s remarriage to the divorcing man). The court accepted his plea, demonstrating its complete ignorance of ‘the rule of halala’.
Just look at what halala is in true Muslim law and what it has been made out to be. If a man divorces his wife the marriage is intact for nearly three months. Called iddat , this is a cooling off period allowing time for conciliation. When it ends, the marriage stands dissolved, but the law still encourages the couple to reunite by tajdid-e-nikah (renewal of marriage). The same law applies also if after such resumption of marriage the man ever divorces his wife again. But, to prevent the man from playing hide-and-seek with her, law provides that a third-time divorce would effect an instant termination, leaving no room for restoration of marital relations.
To this deterrent rule, the law provides a sensible exception — if a thrice-divorced woman marries someone else but, by sheer coincidence, that marriage also fails, should she wish to marry for a third time she may consider returning to her first husband if available and interested. Her second intervening marriage in such a case is ‘halala’ — literally meaning something that removes a legal ban. Clearly, halala merely provides for the exceptional and unlikely eventuality of incidental failure of a divorced woman’s second marriage. It is absurd to regard it as a ‘device’ to be planned and employed to ‘legalise’ remarriage between a man and his thrice-divorced wife.
There has been a controversy whether repeating the word ‘talaq’ thrice, or saying ‘three talaqs’ would have the effect of a third-time divorce — a prima facie absurd proposition — to outlaw a re-marriage between the parties. In recent years it has been settled in many Muslim countries by legislation. If a husband repeats the formula of talaq thrice, or uses the expression ‘three talaqs’, this will not give it the effect of a third-time divorce and, therefore, revocation of divorce during iddat or remarriage thereafter shall be lawful. Here in India, the Supreme Court has held in several recent cases that courts will recognise talaq pronounced by a husband only if he has strictly followed the process prescribed by Islamic law. These rulings imply a de-recognition of ‘triple talaq’, which clearly violates the true divorce process in Islam. In a later case Delhi High Court expressly ruled that ‘triple talaq’ should in every case be regarded as a single divorce, leaving room for revocation by the man during iddat or direct re-marriage between the parties later by their mutual consent.
Sabah Galadari’s case was one of divorce by mutual consent duly recorded in a written agreement — by no means could it be regarded as an incidence of the ‘three talaqs’ — yet the Mumbai court chose to hold that she should have ‘performed’ halala before returning to Adnan. Surprisingly, his conspicuously sinister motive in raising the issue of halala after three years of cohabitation following renewal of marriage did not agitate the court’s mind.
In any case, whatever the Mumbai court or anyone else might erroneously believe the rule of halala to mean, the practice is per se a detestable indignity inflicted on women and hence unconstitutional. In my considered opinion it cannot be given effect by the courts in view of the provision of Article 51-A (d) of the Constitution, which declares that “to renounce practices derogatory to the dignity of women” shall be people’s Fundamental Duty.
Galadari’s is the latest in a long series of cases showing the alarming extent of misuse, misinterpretation and misapplication of Muslim law in Indian society. The solution lies in the enactment of an Indian code of Muslim law in tune with the 21st century.
The author is chairman of Amity University’s Institute of Advanced Legal Studies and a former chairman of National Minorities Commission.