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intervene Marriage
Wednesday, October 3rd, 2018    Gull Hassan Khan

LEGAL / SHARIA STATUS OF INTERVENING MARRIAGE

OR NIKAH HALALA

Nikah Halala or Halala (Urdu: حلالہ): Nikah means marriage and Halala means to make something lawful which is currently unlawful. Halala marriage makes the divorced wife lawful to the former husband, after she had become unlawful due to the three times divorce.

A man pronounces third irrevocable divorce, the wife is separated from him. He cannot remarry her unless she enters an intervening marriage to another man who divorces her after consummation of marriage or he dies and the wife observes Iddah (waiting period). On the expiry of Iddah they can be re-united. There is no disagreement among the jurists regarding the validity of such marriage contract if it is free from the condition of divorce, and there is no collusion among the parties. On, the contrary if the purpose of this intervening marriage I to divorce her and facilitate re-marriage between a divorced couple, then such marriage is a point of disagreement among the jurists.

According to the Quran :

“Allah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:230].

It is stipulated that this marriage which will make her permissible for her first husband should be a valid marriage. Temporary marriage (mut’ah marriage) or marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage) are both haraam and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband. See: al-Mughni (10/49-55).

According to Sunnah :

There are saheeh ahaadeeth from the Prophet Muhammad (PBUH) which show that tahleel marriage  (Nikah Halala) is haraam.

Abu Dawood (2076) narrated that Muhammad (PBUH) said: “Allah has cursed the muhallil and the muhallal lahu.” This was classed as saheeh by al-Albaani in Sunan Abi Dawood. A muhallil is one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband.

Ibn Majaah (1936) narrated from ‘Uqbah ibn ‘Aamir that Muhammad said: “Shall I not tell you of a borrowed billy-goat.” They said, Yes, O Messenger of Allah. He said, “He is al-muhallil. May Allah curse al-muhallil and al-muhallal lahu.” Classed as hasan by al-Albaani in Saheeh Sunan Ibn Maajah.

The Muslim jurists have the following opinion regarding the status of this marriage.

VIEWPOINT OF HANAFI JURISTS:

Hanafi Jurists hold the opinion that such Nikah Halala / intervening marriage is though valid but abominable and improper (makruh). Imam Abu Yousef differing from prevailing view in Hanafi Law, holds that this marriage is invalid, and consequently cannot validate re-marriage between the divorcing couple. He supports his viewpoint by a rolling Hadrat “Umar ruled who said, if a muhallil and a muhallilah are brought to our court, I will have them stoned to death”. Ibn “Umar ruled that man and woman are adulterers, even if they stay together for twenty years. In the opinion of Imam Muhammad, the marriage is valid but the woman does not become lawful by such marriage for her former husband. Imam Abu Hanifah regards it valid and the second husband has the right to ignore the condition and not to divorce his wife.

VIEWPOINT OF SHAFI’i JURISTS:

Shafi jurists hold the view that such a contract (Nikah Halala) is invalid only when the contract contains a condition that the husband will divorce her. But if they agreed before the marriage contract was concluded, or afterwards, then it will not affect the validity of the marriage. They do not give regard to the intention of the contracting parties, nor do they acknowledge the effectiveness of a condition which is not a part of the contract.

VIEWPOINT OF MALAKI AND HANBALI JURISTS:

In the viewpoint of Maliki and Hanbali jurists, Nikah Halala / intervening marriage intended to provide a facility of re-marriage between a divorced couple is invalid, regardless of the whether the divorce is stipulated in the contract or it was agreed upon by the invalid and the first husband cannot re-marry on the basis of this second marriage. If a couple hires services of a person for this purpose, they, in fact, disobey God, and they cannot get what they want, because when a muhallil is used, the process of using him does not achieve the result for which he is used i.e. the couple remains unable to marry lawfully because the condition for their marriage has not been full filled. Holy prophet (s.a.w.s.) has described such muhallil as “borrowed wed bull”. Thus, such marriage is invalid and cannot make the marriage between divorced couple lawful.

According to the Muslim Family Laws Ordinance, 1961:

Under section 7(6) of Muslim Family Law Ordinance, 1961 does not debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

In a landmark Judgment of Federal Shariat Court titled “SALEEM AHMAD versus  GOVERNMENT OF PAKISTAN through Attorney General of Pakistan etc”  it was held that:-

2014 PLD 43 FEDERAL-SHARIAT-COURT

Marriage, termination of—“Khula” and “Mubarat”—Single irrevocable divorce—Re- marrying without any intermediary carriage/”halala “—“Khula” and “Mubarat” operated as a single, irrevocable divorce—Even thereafter both the spouses could contract fresh marriage with mutual consent, of course, if they wanted to, without any intermediary marriage of the wife with another person, as was required in the case when a husband pronounced divorce for the third time; however, iddat shall be incumbent on the wife if she wanted to contract marriage with someone else.

That no other term of Nikah Halala has been used in the said ordinance and therefore in Pakistani laws there is no scope of any Nikah Hilala or intervene marriage.

Whersas in another case, after  divorce was pronounced three time and then cohabiation lead a man to sentcened .

1994 PCRLJ 1856 FEDERAL-SHARIAT-COURT

Offence of Zina (Enforcement of Hudood) Ordinance 1979 —-S. 10(2)—Appraisal of evidence—Divorce given by accused to his female co-accused haring become effective could not be withdrawn by him—Accused admittedly had not remarried the female accused and no HALALA had taken place—Cohabitation between the accused after the divorce, therefore, amounted to commission of Zina—Conviction of accused was consequently maintained, but in view of the fact of the accused being not aware of the legal consequences of living together after non-withdrawal of the divorce, their sentences of imprisonment were substantially reduced

 

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