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After triple talaq, Supreme Court examines legality of Muslim polygamy

Anurag Dey | Updated on: 26 March 2018, 19:01 IST
(File)

Seven months after it declared Triple Talaaq unconstitutional, the Supreme Court Monday agreed to hear multiple petitions challenging the constitutional validity of polygamy and Nikah-halala.

A Bench headed by Chief Justice (CJI) Dipak Misra ordered forming of a Constitution Bench to hear petitions after observing that the twin issues of polygamy and Nikah-halala were not dealt in with the apex court Bench that invalidated Triple Talaaq last August.

The petitions have been filed by BJP leader Ashiwini Upadhyay among others, seeking the practices ne declared unconstitutional and setting up a Judicial Commission to draft a Uniform Civil Code (UCC).

“The petitioners have challenged the practice of Polygamy and Nikah Halala, arguing that they are unconstitutional. Various grounds have been cited in support of their stand on these two practices. It is contended that the Constitution Bench in the Triple Talaq matter had not dealt with these two issues and kept them open. On a perusal of the judgment we find it is correct,” the CJI-headed Bench said, issuing notice to the Centre.

Besides Upadhyay the other petitioners are Sameena Begum and Nafisa Khan, both “victims of polygamy” and Hyderabad-based social activist Moullim Mohsin Bin Hussain Bin Abdad Al Kathiri. Seeking a constitution Bench, they argued that both issues were referred to the Triple Talaq Constitution Bench. But it left them “open for consideration” at a later stage.

 

The petitions

Upadhyay in his petition contended Nikah-Halala and polygamy to be unconstitutional and violative of Articles 14, 15 and 21 of the Constitution. 

“Polygamy and Nikah-Halala are injurious to public order, morality and health. They can be superseded by the State just like it prohibited human sacrifice or practice of sati. But, Executive is inactive,” accroding to the petition.

Contending that the Constitution doesn’t grants absolute protection to personal law of any community that is arbitrary or unjust or exempts then from jurisdiction of the judiciary, Upadhyay prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional and violative of Articles 14, 15 and 21 of the Constitution, insofar as it seeks to recognise and validate the practice of polygamy and Nikah-halala.

Expert committee for UCC

Raising the issue of Uniform Civil Code (UCC), Upadhyay accused the Legislature of ignoring it: “It is submitted that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular especially when it concerns matters of marriage, divorce and succession. Despite the observations of this Hon’ble Court for the past few decades, Uniform Civil Code remains an elusive Constitutional goal that the Courts have fairly refrained from enforcing through directions.”

Upadhyay prayed for setting up an expert committee for drafting UCC: “It is requested to constitute a High Level Expert Committee or a Judicial Commission or direct the Law Commission of India to draft a Uniform Civil Code for all the citizens of India, considering the best practices of all the religions and sects, Civil Laws of the developed countries, international conventions in consonance with Article 44 read with Article 14, 15 and 21 of the Constitution and publish it on the website for at least 30 days for comprehensive public debate and feedback before introducing it in Parliament.

Declare Nikah halala as rape

A victim of polygamy herself, Delhi-based Begum through her petition has sought criminalising Nikah halala as rape and a complete ban on polygamy.

“The Legislature has failed to ensure the basic dignity and equality of women in general and Muslim in particular when it concerns matters of marriage and divorce and succession. A complete ban on Polygamy and Nikah-Halala has long been need of the hour as it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights.

“Fundamental rights are supreme and have primacy over Personal Laws. Hence, this Hon’ble Court may declare that “Nikah-Halala is Rape under Section 375 and Polygamy is an offence under Section 494 of IPC”,” she contended in the petition.

She contended that actions of religious groups, bodies and leaders that permit and propagate practice of Triple Talaq, polygamy and Nikah-Halala must be declared unconstitutional and an offence under the Indian Penal Code. Begum has also sought for a direction to the Law Commission of India to publish its Report on Uniform Civil Code.

Criminalise polygamy and Nikah-Halala

Khan, a journalist from Delhi also sought criminalising polygamy and Nikah-Halala. 

“Muslim Personal Law permits Muslim men to have up to four wives at once. Therefore, by virtue of Muslim Personal Law, Section 494 (IPC) is rendered inapplicable to Muslims, and no Muslim wife has the avenue of filing a complaint against her husband for the offence of bigamy. This is in blatant contravention of Articles 14, 15 and 21 of the Constitution of India,” she contended. 

In her petition, Khan has urged: 

  • Declaring practice of polygamy illegal, unconstitutional, and violative of Articles 14, 15, 21 and 25 of the Constitution. 
  • Declaring Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 unconstitutional and void for being violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it seeks to validate the practice of polygamy. 
  • Declaring the Dissolution of Muslim Marriages Act, 1939, unconstitutional and violative of Articles 14, 15, 21 and 25 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 Indian women belonging to other religions. 
  • Declaring that a Muslim wife whose marriage has been terminated by a valid and legally recognised form of talaq by her husband may remarry her husband without an intervening halala marriage with another man.

Al Kathiri in his petition contended that the Muslim Personal Law (Shariat) Application Act, 1937 “conveys a wrong impression that the law sanctions Nikah Halala, Nikah Mutah and Nikah Misyar and Polygamy”.

“Several Islamic nations have banned the practice of Nikah Halala, Nikah Mutah, Nikah Misyar and Polygamy, while Indian Muslim women are still suffering on account of such practices. Thus, the basic rights of women are being violated continuously, despite reforms introduced by Islamic nations to secure a life of dignity unmarred by the gender discrimination.

“The Constitution of India has primacy over the common law and common law has primacy over personal law and Indian Penal Code is applicable upon all Citizens. Hence, this Hon’ble Court may declare that practice of Nikah Halala, Nikah Mutah and Nikah Misyar is rape under Section 375, IPC and Polygamy is an offence under Section 494 IPC,” he said.

First published: 26 March 2018, 19:01 IST
 
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