DAY 25
Part 3- HALALA, MUTA, CONVERSION OF FAITH
As the title suggests, BMMA’s draft law makes the following provisions on each of the topics.
What provisions are made in your draft law with regards to halala?
- Woman and man who have had their marriage dissolved and wish to remarry each other, can do so by contracting a fresh marriage.
- No woman can be compelled through force or threat to undergo a consummated marriage and divorce [halala] before she marries her former husband.
- Any person who compels a woman through force or threat to do halala, shall be punishable with an imprisonment of three years and fine.
- Any person who solemnizes or acts as a witness to halala marriage, shall be punishable with an imprisonment of three years and fine.
- Any offence punishable under this Act shall be deemed to be cognizable and bailable.
How does halala play out in the community?
This is a practice which BMMA volunteers have encountered multiple times. In fact in 2008, we had also done a public hearing in Lucknow where halala victims had come forward to recount their terrible experiences. In Mumbai, I have personally met a victim who was made to do halala 8 times, each time with a different man. Her husband kept divorcing her and taking her back after she was forced to do halala. She and many Muslim women think doing halala has religious sanction and even though they don’t agree with it, they do it, so that their marriage with their former husband has religious sanction. They think it is haraam to go back to your former husband without the intervening marriage.
In a sting operation, BMMA volunteers in Mumbai, encountered a qazi who offered himself to do the halala nikaah for money. So he gets to have sex with a woman, where he gets paid! There are news of halala websites and religious groups in a developed country like UK who offer halala services. One can imagine what impressions non-Muslims carry about Islam!
Is halala not sanction by Quran?
The Quranic verses in fact suggest that if she has a divorce with husband and if she has remarried and even the second marriage also has ended in a divorce and if she wants to go back to her first husband, she can do so. Deviously, the religious group converted the second natural marriage and divorce as a requirement for her to go back to her first husband.
The Quranic verses are:
2:230 says, if he divorces her, she shall not be lawful for him again until she has married another husband. If the latter divorces her, then there is no blame on them for reuniting, provided they think they can maintain Allah's limits. And then 2:232 says, when you divorce women, and they have reached their term, do not prevent them from marrying their husbands, provided they agree on fair terms.
It is envisioned in these verses that the first and the second and then the first marriage are happening naturally, without coercion or fraud. The moot purpose of these verses is that if the second marriage does not work and if the woman feels that the first husband is the best bet, the Quran permits her to go back to her first husband.
What are the provisions on Muta marriage, which involves a provision of in-built divorce at the time of marriage?
- The draft law says that if a marriage gets dissolved automatically after a certain lapse of time whether it is mentioned in the nikaahnama or not is illegal.
- No mention of a pre-determined date of divorce is allowed as per this draft law.
- Any person compelling a woman to agree to a marriage with inbuilt divorce shall be punishable with an imprisonment of three years and fine.
Is Muta practice very rampant?
The issue is not whether it is rampant or not, but the fact that it occurs and violates all norms of gender justice. We have heard cases, especially in the southern part of India, where young girls are married to man who come from other countries for a brief period. In this brief period, which could be as brief as a week, they take sexual advantage of young girls. In order to legalize their sexual needs they do nikaah, pay a hefty mehr to the mostly poor family, and as per the provision in the nikaahnama, the marriage gets dissolved as mentioned in the nikahnama depending on the convenience of the man. This is prostitution, given the holy garb of religion and law. If it is put down on paper and if a holy verses are chanted, rape turns into a legal, valid and a religious transaction.
And it goes against the vision of marriage in Islam?
Exactly. In Islam marriage is a solemn promise, agreement between two consenting adults to live a life of peace, love, care and dignity. And people use the very same religion to justify such heinous practices. And there is not even a mention of anything close to this in the Quran.
Religious groups, especially Shia scholars, justify this practice based on the Quranic verse, 4:24 which says, ‘Permitted for you is what is beyond that, to seek women in return for your wealth, while you are muḥṣinīna, not committing fornication. Those of them in whom you find pleasure—give them their wages/dowers as set, and there will be no sin upon you concerning any agreement you reach among yourselves after the setting of the wages/dowers’
All the points mentioned in this verse, which they justify as muta marriage are actually conditions for a normal marriage:
- ‘Seek women in return for your wealth’ – Muslim marriages require mehr to be given. So this part of the verse refers to payment of mehr.
- ‘while you are not commiting fornication’ - It is asking man to not have the intention to fornicate but be chaste and have the intention of a long term relationship.
- ‘for those in whom you find pleasure’ - Finding pleasure is not temporary sexual pleasure but the pleasure of setting up a family and living in peace and contentment. [Quora.com]
- ‘no sin upon you concerning an agreement you reach among yourselves’ – Muslim marriage is a contract, an agreement between two people.
So all 4 aspects of a Muslim marriage are mentioned here; giving mehr, entering an agreement, intention to remain chaste and finding pleasure in setting up a family in peace. And how these very aspects have been turned into justification for muta.
Why was it necessary for you to include the aspect of conversion in the draft?
Since we are community based organization doing legal aid, we have encountered many different kinds of cases which are difficult to resolve legally simply because there is no legal provision. In the community too nobody wants to discuss shariah matters from a women’s perspective. Certain traditional decisions make the round and we have no option unless we come up with some decision that is gender just. In our experience many non-Muslim woman in order to marry a Muslim man convert to Islam. When they face issues within marriage, or if a divorce happens, or if the husband has disappeared, she is stuck in a religion/culture which does not come forward to support her. Her in-laws insist that they take back the children. Sometimes she is compelled to remain in the religion for the children. The purpose of conversion was the religion of the man and not really a commitment to the faith itself. This is not to say that all converted women, upon divorce or abandonment, want to go back to their original faith. Many are committed to Islam irrespective of what happens to the marriage. But what protection exists for women who after divorce or abandonment want to go back to her original faith without having to sacrifice her children?
So what do you propose?
Custody of children should not be an automatic process. Even if the woman converts back to her original religion which is not Islam, she does not lose the custody of the children. A mother-child bond is beyond such boundaries. Each is a stand alone case but the larger principle remains which is that in a situation of a Muslim husband abandoning/divorcing his wife does not automatically take away her right over the custody of children, even if she chooses to go back to her former religion, which was not Islam.
What about conversion automatically dissolving a marriage as happened in the 1930’s when Muslim women converted in order to come out of a bad marriage?
Our draft law says, renunciation of Islam by a married Muslim woman or man or her/his conversion to a faith other than Islam shall not by itself operate to dissolve her/his marriage.
The dissolution of marriage must happen as mentioned in this draft law and as we have discussed in the previous articles.
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