SC CONSTITUTION BENCH TO EXAMINE VALIDITY OF POLYGAMY, NIKAH HALALA

 

After declaring instant triple talaq invalid under the Constitution, the Supreme Court on Monday formed a Constitution Bench to examine the validity of Muslim personal law practices of polygamy and nikah halala.

While triple talaq related to immediate annulment of marriage, nikah halala is a consequence of it where a Muslim woman intending to remarry her divorced husband has to marry another man and obtain divorce from him. The practice of polygamy, on the other hand, allows a Muslim man to have multiple wives with the earlier marriage still continuing.

Four public interest litigations (PIL) — two by advocates and two others by Muslim women, who were victims of this practice — were heard by a Bench headed by Chief Justice Dipak Misra. The court examined the prayers similar in each petition demanding that the twin practices of nikah halala and polygamy be declared unconstitutional and violative of fundamental rights of Muslim women under Article 14 (right to equality), Article 15 (right against discrimination), and Article 21 (right to live with dignity).

 

A battery of senior lawyers argued the petitions drawing the court’s attention to the fact that while striking down triple talaq as unconstitutional, a 3:2 majority Bench of the apex court on August 22, 2017 in Shayara Bano vs Union of India left open the question of validity of the other Muslim personal law practices such as polygamy and nikah halala. The Bench had then said the said issues could be debated upon as and when an affected party approached the court.

The petitioners submitted that giving recognition to talaq-e-bidat, nikah halala and polygamy as a valid form of divorce interferes with the Muslim women’s right to profess and practice her religion under Article 25. It also treated women unequal as it is illegal for a married Muslim female to marry a second time during subsistence of first marriage and such second marriage is void.

Moreover, if a man agreed not to marry a second time as per nikahnama, his second marriage is at best a breach of contract but not a ground to make the second marriage void, the petitioners argued. To this extent, the petitioners even challenged the validity of Dissolution of Muslim Marriages Act 1939 as unconstitutional.

The Bench, also comprising Justices AM Khanwilkar and DY Chandrachud, referred the twin issues to the Chief Justice of India for constituting a Constitution Bench of five judges. The Court directed the petitioner to serve a copy on the Centre for seeking their response.

Two of the petitioners — Sameena Begum and Nafisa Khan related their ordeal of how their husbands mistreated them and without obtaining divorce, married another woman. Sameena got married in 1999 and had two sons from the wedlock.

With time, her husband tortured her to bring more dowry or else threatened to give her talaq. She filed a complaint of dowry harassment under IPC Section 498A

Nafisa too underwent torture and harassment in marriage and was left remediless under law when her husband married another woman without giving her divorce. She also had no recourse to filing a criminal case under IPC Section 494 that punishes a man for bigamy.

Left remediless due to polygamy and triple talaq getting the legal cover under Muslim personal law, both petitioners demanded polygamy, nikah halala, and triple talaq as offence under Sections 498A (dowry harassment), 375 (rape) and 494 (bigamy) of IPC.

The other two petitions filed by BJP leader and lawyer Ashwini Upadhyay and lawyer Moulim Mohsin Bin Hussein, attacked the validity of the nikah halala and polygamy on the same logic as applied by the Supreme Court in Shayara Bano, since the practices treat Muslim women as chattels and unequal.

Senior advocates Mohan Parasaran, V Shekhar, Sajan Poovaiya and advocate Gopal Shankarnaraynan made submissions for the petitioners.

Poovaiya who argued for petitioner Hussein also urged the Court to consider the validity of nikah misiyar and nikah muta which allow Muslim men to have a one-night stand marriage or a marriage of pleasure.

Nikah misiyar is prevalent among Sunni Muslims while Zaidi Shias, Ismaili Shias, and Dawoodi Bohras do not practice nikah mutah.

The petitions could pave way for enforcement of a Uniform Civil Code as one of the petitioners argued that Article 44 of the Constitution prescribes that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

Source: The Pioneer

Compiled by Mirah Zamin