(G.N.S) Dt. 26
Seven months after declaring instant triple talaq unconstitutional, the Supreme Court (SC) today agreed to examine the constitutional validity of polygamy and ‘nikah halala’ in the Muslim community. The Supreme Court on Monday agreed to examine the constitutional validity of the prevalent practices of polygamy and ‘nikah halala’ among the Muslims and sought responses from the Centre and the law commission.
A bench headed by Chief Justice Dipak Misra considered the submission that an earlier five-judge constitution bench, in its 2017 verdict, had kept open the issue of polygamy and ‘nikah halala’ while quashing triple talaq.
On Monday, the bench, which also comprised Justices AM Khanwilkar and DY Chandrachud, said a fresh five-judge constitution bench would be set up to deal with the constitutionality of ‘nikah halala’ and polygamy.
The SC today issued notices to the Centre and the Law Commission asking them to make their stand clear on a batch of petitions asking the two practices be abolished. Polygamy is the practice of being married to more than one woman. Nikah-halala is a practice intended to curb divorce. Under it, a man cannot remarry his former wife without her going through the process of marrying someone else, consummating that marriage, getting divorced and observing a separation period called Iddat.
One petitioner, a Hyderabad-based lawyer, has contended that while Muslim law allows a man to have multiple wives by way of the temporary marriages or polygamy, the same permission is not extended to women and therefore the law violates the fundamental rights of Muslim women.
Another petition, filed by a Delhi-based woman, has said that by virtue of the Muslim Personal Law, section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to Muslims and no married woman from the community has the avenue to file a complaint against her husband for the offence of bigamy.
While polygamy allows a Muslim man to have four wives, ‘nikah halala’ deals with the process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.
By a majority of 3:2, a five-judge constitution bench had earlier held triple talaq as unconstitutional in its judgement last year.
The bench was hearing at least three petitions including some PILs challenging the practices on various grounds including that they violate Right to Equality and gender justice.
Delhi BJP leader Aswini Kumar Upadhyay, who filed a PIL on 5 March, claimed that the ban on polygamy and ‘nikah halala’ was the need of the hour to secure basic rights.
The harm caused to the women due to the practices of triple talaq, polygamy and ‘nikah halala’ is violative of Articles 14, 15 and 21 of the Constitution and injurious to public order, morality and health, Upadhyay’s petition said.
He sought a declaration “that the provisions of the IPC are applicable on all Indian citizens and triple talaq is a cruelty under section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC, ‘nikah halala’ is rape under section 375 (rape) of the IPC, and polygamy is an offence under section 494 (marrying again during lifetime of husband or wife) of the IPC.”
On 14 March, a Delhi-based woman, had moved the apex court saying that by virtue of Muslim Personal Law, section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to this community and no married Muslim woman has the avenue of filing a complaint against her husband for the offence of bigamy.
She sought to declare the Dissolution of Muslim Marriages Act, 1939, unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for women in India belonging to other religions.
The petitioner, who herself claimed to be a victim of such practices, has alleged that her husband and his family used to torture her for want of more dowry and she was ousted from the matrimonial home twice.
She also alleged that her husband had married another woman without taking any legal divorce from her and the police had refused to lodge FIR under section 494 and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC stating that polygamy was permitted under the Sharia.
Later on 18 March, a Hyderabad-based lawyer, had also challenged the practice of polygamy, claiming that all these types of marriages under the Muslim personal law violate the fundamental rights of Muslim women.
The petition has contended that while the Muslim law allows a man to have multiple wives by way of the temporary marriages or polygamy, same permission is not extended to women.
The petition has opposed the practice of nikah halala, where a divorced woman has to remarry and then get a talaq before being able to marry her first husband, as well as nikah mutah and nikah misyar — both temporary marriages where the duration of the relationship is specified and agreed upon in advance.
(G.N.S) Dt. 26