Halala Marriage in Pakistan

Introduction:

Nikah Halala, also known as intervening marriage, is a controversial practice in Islamic law, raising ethical and legal questions. This article delves into the concept of Halala, examining its definition, the Quranic perspective, Sunnah teachings, and the viewpoints of different Islamic jurists. Additionally, it explores the legal status of Halala marriages under the Muslim Family Laws Ordinance, 1961, and references significant judgments from the Federal Shariat Court.

Understanding Nikah Halala:

Nikah Halala is a process wherein a divorced wife, after the pronouncement of the third irrevocable divorce, becomes lawful to her former husband. The husband cannot remarry her directly; instead, the wife must enter into an intervening marriage with another man. This intervening marriage concludes either through consummation and subsequent divorce or the death of the second husband. After observing the required waiting period (Iddah), the divorced couple can reunite.

Quranic Perspective and Sunnah Teachings:

The Quran explicitly addresses Nikah Halala in Surah Al-Baqarah (2:230), stating that if a man divorces his wife for the third time, she is not lawful to him until she marries another husband. However, it is crucial that this marriage be valid, and temporary marriages (mut’ah) or marriages solely for the purpose of making the woman permissible for her first husband (tahleel) are deemed haraam (forbidden).

Prophet Muhammad’s teachings, as recorded in saheeh ahaadeeth, further emphasize the prohibition of Nikah Halala, referring to those involved as accursed.

Jurisprudential Viewpoints:

1. Hanafi Jurists: While considering Nikah Halala valid, Hanafi jurists label it as abominable and improper (makruh). However, there is dissent within this school of thought, with some scholars asserting its invalidity. Notably, Imam Abu Yousef holds the view that Nikah Halala is invalid.

2. Shafi’i Jurists: Shafi’i jurists argue that the validity of Nikah Halala depends on whether the marriage contract includes a condition for subsequent divorce. Agreements made before or after the marriage contract, without such a condition, are considered valid.

3. Maliki and Hanbali Jurists: Both Maliki and Hanbali jurists deem Nikah Halala, intended to facilitate re-marriage between a divorced couple, as invalid. They emphasize the disobedience to God’s laws and the ineffectiveness of using an intermediary for this purpose.

Legal Status under Muslim Family Laws Ordinance, 1961:

Section 7(6) of the Muslim Family Laws Ordinance, 1961, explicitly allows a wife, whose marriage has been terminated by talaq under this section, to re-marry the same husband without an intervening marriage unless the termination has occurred for the third time.

Notable Judgments:

1. Federal Shariat Court Judgment (2014 PLD 43 FEDERAL-SHARIAT-COURT):
This landmark judgment held that “Khula” and “Mubarat” operate as a single, irrevocable divorce. Both spouses can contract a fresh marriage with mutual consent, without the need for an intermediary marriage.

2. Federal Shariat Court Judgment (1994 PCRLJ 1856 FEDERAL-SHARIAT-COURT):
This case highlighted the legal consequences of living together after non-withdrawal of divorce. While cohabitation without remarriage amounted to Zina, the court reduced the sentences considering the accused’s lack of awareness.

Conclusion:

Nikah Halala remains a subject of debate within Islamic jurisprudence, with varying viewpoints on its validity and ethical considerations. Understanding its legal and Sharia status involves an intricate analysis of Quranic verses, Sunnah teachings, and interpretations by different juristic schools. The Muslim Family Laws Ordinance, 1961, provides clarity on the permissibility of re-marrying the same husband without an intervening marriage in certain circumstances. Landmark legal judgments further contribute to shaping the discourse around Nikah Halala, highlighting the complexity of balancing religious principles with contemporary legal frameworks.