Star Law Review
Hilla marriage: An analysis
Mohammad Moin Uddin
At the outset, I hope the readers would be generous to allow me to quote the very first para preferred by Dr. Tahir Mahmood in the Preface to the first edition of his celebrated book 'The Muslim Law of India'. I quote- “Muslims sometimes awfully misuse their personal law, more in sheer ignorance than deliberately for selfish ends. Non-Muslims often terribly misunderstand its precepts. The former are unaware, the latter misinformed. Both have to be properly educated”. To me, here 'education' means 'right information' and 'a search for truth'. However, this write-up is an attempt to refresh the memory of conscious readers about hilla marriage; particularly the background of this provision and the wide gap prevailing in practice.
We know that in family matters like marriage, dower, divorce, guardianship etc. Muslims are governed by their personal law necessarily reflecting the tenets and prescriptions of their religion. This is constitutionally recognised and judicially enforceable. But surprisingly personal laws sometimes offer some provisions so peculiar and exceptional in nature that nothing comparable exists elsewhere. The provision of hilla marriage is one of such exceptional areas.
The word 'Hilla' is of Arabic origin which contemplates 'a device' or 'a way out'. Hilla marriage is a device through which a legal bar, to remarry the earlier divorcing husband, is removed. But beware of the fact that such device becomes necessary only in case of triple divorce (whether given at a time or in the Hasan Form leading to the irrevocable stage). If the divorce is given in any other form like one or two revocable talak, Khula, Zihar, Mubarat etc., hilla marriage is not necessary.
According to Muslim Law, a husband may pronounce revocable divorce twice. So if he divorces for the third time, thereafter no chance was left to the husband to recall the decision and take her back as wife, excepting (a) that she had been married to a third person capable of sexual intercourse, (b) that the marriage to the third person must be actually consummated, (c) that the third person divorces her at his own will. Only then after the expiry of her Iddat the former husband (exercising triple divorce) shall be enabled to marry her again and take her back. Thus the marriage with the third person is a device for validating the marriage with the former husband; which is why it is called hilla marriage.
Because of the precise and unequivocal prescription of this provision in the holy Koran (verses- II: 229 and 230) there had been almost no debate about the propriety of this provision among the early schools of Muslim Law.
Apparently it is a harsh provision entailing a hardship on the way to their reunion but we shall be surprised to know that this hardship was aimed at solving a greater social evil prevalent in the pre-Islamic society. It was customary with an Arab during the Jahiliyat days to divorce his wife as many times as he liked and then take her back as often as he pleased. Womenfolk were absolutely helpless in the face of men's tyranny. It was to prevent such barbarous practice that the law of talak-e- bain was interposed and made the dissolution irrevocable leaving the husband to stew in his own juice.
Some western writers like Sautayra and Sedillot observe that hilla marriage is a very wise provision to check the whimsical exercise of divorce. To quote Syed Ameer Ali, “Sautayra and Sedillot agree with the Moslem jurists in thinking , that this rule (Hilla) was framed with the object of restraining the frequency of divorce in Arabia. Sedillot speaks of the condition as “a very wise one”, as it rendered separation more rare by imposing a check on its frequent practice among the Hebrews and the heathen Arabs of the Peninsula. Sautayra says that the check was intended to control a jealous, sensitive, half-cultured race by appealing to their sense of honour”.
That is, psychology of the husband is the target of this rule. The device of hilla always warns the husband that if you pronounce the divorce (for the third time) you cannot revoke it anymore; also you will not be able even to remarry your wife right away. If you so wish you will have to pay a penalty -- which due to human nature , you will never like -- the penalty of finding your wife in somebody else's bed and remarrying her only if and when she is lawfully free of the second marital bond (the penalty is known as halala).
What is the effect of non-compliance with this rule of halala? Is the remarriage with the former husband without hilla marriage merely irregular or totally void? In an earlier case of Rashid Ahmed v. Anisa Khatun (1931) 59 I.A. 21, one Ghiyasuddin pronounced a triple divorce in abominable form and executed a deed of divorce accordingly. The couple afterwards lived together for 15 years and five children were born. There was no proof of hilla marriage. The Privy Council held that the talak being triple and there being no intermediate marriage, the bar to remarriage was not removed. In these circumstances, the marriage was void and the five children were illegitimate.
The Muslim Family Laws Ordinance 1961 (later on referred to as MFLO 1961) is acclaimed for bringing radical changes to the traditional Muslim law of divorce in Section 7. But this law also did not do away with the requirement of hilla marriage altogether. Section 7(6) holds that there is no bar for a wife, whose marriage has been terminated by talak effective under this section (complying all the formalities), to remarry the same husband without an intervening marriage with a third person, unless such termination is for the third time so effective.
A careful reading of this sub-section reveals that the necessity of hilla marriage arises only if (1) the marriage has been terminated by talak effective under this section, and (2) such termination is for the third time so effective. It is mentionable here that, a talak to become effective under section 7, the divorcing husband must give a notice to the chairman, who shall for the purpose of reconciliation form an arbitration council. If the reconciliation attempt is baffled, talak becomes effective after 90 days from the receipt of the notice of talak. If this procedure is followed for the third time, hilla becomes necessary under section 7 sub-section 6 of the MFLO 1961. In the following two diagrams the relative contradistinction is shown between the existing law and the original Muslim Law as regards hilla marriage.
Here, to enter into a valid marriage with the former husband, a hilla marriage with a third person is obligatory.
So, undoubtedly there is a gulf of difference between the original Muslim Law and the existing law of divorce so far as the requirement of hilla marriage is concerned. Section 7 of the MFLO 1961 clearly allows remarriage after any form of divorce (including triple divorce) without an intervening marriage with a third person for the first and second time; which is not so possible under Muslim Law if the initial pronouncement is for the triple divorce. In this circumstance, we must remember the general principle of law i.e. if the state law is in conflict with personal law, state law will prevail.
Let us now recapitulate the existing malpractices and misconceptions regarding hilla marriage in our country, the rural areas in particular.
(1) People think that triple divorce is the only way to sever the marital tie, and therefore, they mistakenly become accustomed to this type of divorce instead of approved forms of divorce. Undoubtedly, the triple divorce triggers off the hilla marriage in motion, though preliminarily according to original Muslim Law (also finally as per the existing law).
(2) Although due to their strict faith upon their religious prescription people think the hilla marriage obligatory, they take it as a fictitious marriage, not a bonafide intervening marriage -- often in the nature of 'marriage of convenience' at the whims of the earlier husband or matabbars. Whereas, Muslim Law contemplates a bonafide intervening marriage and also a bonafide divorce by the intermediate husband -- not with the intention of making her available to the first husband. If the wife gets solace of mind in the intervening husband and the husband also feels corresponding love and affection to her, he is not bound to divorce her for making her available for the first husband, notwithstanding any contract to the contrary.
(3) There is a misconception even among the literate people that there is nothing like hilla marriage in our legal paradigm. Certainly there it is! Unless and until the necessity of hilla marriage is expressly obviated by a clear legislation, it remains an enforceable provision under the auspices of Muslim Family Law.
Finally, as a conscious student of Muslim Law, I like to remind the readers that divorce in general is seriously discouraged in the Koran and the Sunna; of course, it is allowed as a necessary evil. Prophet said -- “Talak is the most detestable of all permissible things before the Almighty Allah”. Hilla marriage, which imposes a deliberate hardship, is also a device to discourage frequent exercise of divorce. We know that the best construction of laws is one when a law is read with the law-giver's own words and intention.
Whatever be the law, hilla marriage should not become an engine of oppression to women at the hands of matabbars and fatwabaz people. It is only our courts, higher or lower, that can decide in a fit case whether in the circumstances of that particular case it is necessary or not. Before condemning the device of hilla marriage, our first plan of action should be to make people aware of the negative consequences of divorce, the triple divorce in particular. To obviate the sufferings of a penalty, we should, at first, prevent ourselves from committing the offence itself. Shouldn't we?
The writer is Lecturer, Premier University, Chittagong.