Remarriage without intervening marriage (Halala)

remarriage-without-intervening-marriage

The concept of halala has always been a debatable issue in Muslim societies. Many people get misled by different discussions on the subject. Through this article, I have made an effort to examine the legal and Islamic positions on this topic in order to elucidate the topic and I hope that people don’t get confused on the issue anymore.

Mode of giving talaq

A talaq may be effective in any of the following ways:

(1) Talaq-e-Ahsan: consists of single pronouncement of divorce made during tuhr (period between two menstruations) followed by abstinence from sexual intercourse for the period of iddat.

(2) Talaq-e-Hasan: consists of three pronouncement made during successive tuhrs; no intercourse taking place during any of the three tuhrs.

(3) Talaq-e-Bidat or Talaq-i-Badai: this consists of:

(I) three pronouncement made during single tuhr either in one sentence, e.g. “ I divorce thee thrice, or in a separate sentences, e.g.  “I divorce thee, I divorce thee, I divorce thee”; or

(ii) a single pronouncement made during single tuhr clearly indicating an intention of giving an irrevocable divorce e.g. “ I divorce thee irrevocably”.

The Hanafis recognize two kinds of talaq, namely, (1) talaq-us-sunnah, that is,  talaq according to the rules laid down in sunnah (traditions) of the Holy Prophet (PBUH); and (2) talaq-e-bidat, that is, new or irregular talaq.

Talaq-e-bidat was introduced by Umayyads in the second century of Islamic era. Talaq-us-sunnah is of two kinds: (1) ahsan, that is, most proper, and (2) hasan, that is, proper. Talaq-e-bidat or heretical divorce is good in law, though bad in theology.

In case of talaq-e-ahsan or talaq-e-hasan, the husband has an opportunity of reconsidering the decision, for the talaq in both these cases does not become absolute until a certain period has elapsed and husband has an option to revoke it before then. But the talaq-e-bidat becomes irrevocable immediately it is pronounced.

Shia scholars do not recognize the validity of talaq-e-bidat (Baillie 11, p.118)”.

Position under the Pakistani Law

Section 7 (6) of the Muslim Family Laws Ordinance, 1961, which deals with the issue of intervening marriage (Halala), is reproduced hereunder.

Section 7(6): Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with the third person, unless such termination is for the third time so effective.

Legal position on the issue of intervening marriage in case of talaq has been discussed in the preceding paragraph. Yet, there still persists some confusion in the minds of the Muslims about the concept of intervening marriage in case of dissolution of marriage through modes other than talaq i.e. if the husband does not give talaq but wife seeks khula or the marriage is dissolved by the court on the grounds mentioned in the “Dissolution of Marriage Act, 1939” or otherwise. What shall be the position with respect to intervening marriage (Halala)?

Section 8 of the Muslim Family Laws Ordinance 1961 deals with this situation, which reads:

“Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of Section 7 of Muslim Family Law Ordinance, 1961 shall, mutatis mutandis and so far as applicable, apply.”

Case Law  on the Topic

Section 7(6) of Muslim Family Laws 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. [PLD 1963 SC 51].
The law applicable prior  to the enforcement of Muslim Family Laws Ordinance, 1961, made it obligatory on the couples divorced by any mode of talaq, other than talaq-i-Ahsan, not to remarry each other again unless the wife marries another man by a valid contract and the later dies or divorces her after actual consumption and she marries her first husband after the period of iddat. Before remarriage, the parties had to prove that the bar to their remarriage was removed by an intermediate marriage, consummation and dissolution, otherwise their marriage was not considered valid. In case of divorce through “Khula,” it is not obligatory on the wife to remarry a third person before entering into remarriage with her first husband. The remarriage with the same husband, of course, would be subject to performance of another Nikah. Section 7(6) of Muslim Family Laws Ordinance, 1961 also allows such reunion without “halala”. There is no restraint either in the Muslim Family Laws Ordinance or in the injunctions of Quran and Sunnah on allowing prayer of a husband for reunion with his wife when she is ready to relive again as wife of the husband within limits prescribed by Allah Almighty. [PLD 2003 Pesh 169, PLD 2013  Lah 88, PLD 2013 Kar 209, PLD 2011 Lah 456].

The upshot of the discussion is that now in Pakistan nothing shall debar a wife whose marriage has been terminated by talaq effective or otherwise from remarrying the same husband, without an intervening marriage (halala) with the third person, unless such termination is for the third time so effective. Thus, there remains no compulsion to go through intervening marriage (halala) after every talaq or dissolution of marriage. The husband and wife may remarry each other without halala in case of first two effective divorces. Section 7(6) of Muslim Family Law Ordinance, 1961, has made talaq-e-bidat redundant or reduced its effectiveness to a single talaq.

Email:  muqtedir@hotmail.com

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