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No more polygamy for Muslims?

A club of petitions has been filed in the Supreme Court asking to declare the practise of Polygamy and Nikah-Halala illegal.

A three-judge bench comprising of CJI Dipak Misra, Justice Khanwilkar and Justice Chandrachud referred a batch of petitions by BJP leader Ashwini Upadhyay, Sameera Begum, Nafeesa Begum and Moullim Mohsin-Bin-Hussain-Bin-Abdad Al Kathiri to a constitutional bench for hearing.

The petition filed Mr Upadhyay asks that Section 2 of Muslim Personal Law (Shariyat) Application Act should be declared unconstitutional and violative of Articles 14, 15 and 21 to the extent that it allows the practise of polygamy and nikah-halala.

He further prays that the Act of polygamy be covered under Section 494 of the IPC that prohibits the remarrying during lifetime of a spouse. He has also contended that Triple Talaq is cruelty u/s 498A of the IPC and that Nikah-Halala is rape as per section 375 of the IPC.

Citing the principle of primacy of laws, he says that constitutional law is supreme to all laws and that all laws derive their validity from it. Any law that fails the test of constitutional validity cannot be enforced in India.

Citing the decision of the Supreme Court case in Saira Bano case declaring the practise of triple talaq unconstitutional, he cites the inaction by the executive and says the longevity of sinful practise does not grant validity of it simply because it is permitted in a religious custom. He also cites the Sarla Mudgal case wherein, it is said that women from all religions are granted the protection from polygamy except Muslims.

In another petition, 40-year-old Sameena Begum has petitioned the Supreme Court on the basis of her personal experience. She was tortured by her first husband for dowry. On filing a police complaint, he gave her triple talaq. She remarried but her second gave her triple talaq over the phone when she was pregnant with their child.

She has said that she is moved by the plight of thousands of muslim women in India who suffer due to draconian practise of nikah-halala and triple talaq. She has also asked for the practise to be put under the ambit of 498A and 375 of IPC.

She has also contended that no marriage law can operate ultra vires of the constitution. If the law is not in conformity with the provisions of part III (fundamental rights) of the constitution, it is the duty of the court to declare it inoperable.

Lastly, the petition filed by Moullim Mohsin-Bin-Hussain-Bin-Abdad Al Kathiri is a PIL under article 32 of the constitution. He has said the Shariyat act gives the wrong impression that law grants protection to the practice of nikah-halala and polygamy, which is most injurious to public order and social harmony as it gives an opening for muslim men to exploit women without the fear of any legal repercussions.

Another petition by Nafeesa Khan has the Muslim personal laws are a blatant contravention of constitutional provisions citing the reason that it makes it impossible for women to take legal action against the obsolete customary practises of polygamy and nikah-halala. She also comes out of a personal experience alleging that her husband married another woman without giving her a divorce.

In reply to these petitions, the Jamiat Ulama-I-Hind has prayed in an application to the court that be heard in the matter. They base their reliance on the following three points;

  • 1. Muslim personal law derives its origin from the Holy Quran, thus cannot fall under the ambit law as per article 13 of the Constitution.
  • 2. The policy envisaged in article 44 is simply a directive principle of state and thus not enforceable in the court.
  • 3. The case of Krishna Singh v Mathura Athir wherein the Supreme Court has held that part III of the constitution does not touch upon the personal laws of the parties.

On these grounds, the court cannot examine the constitutional validity of polygamy and nikah-halala.

While the above submissions are sub-judice, let us talk about what Nikah-Halala acutally is. It is the rule in muslim marriages wherein a muslim woman, once divorced by her husband, cannot remarry him unless she marries someone else, consummates the marriage and then gets a divorce from her new husband. There is no logical explanation behind the practise that could withstand the scrutiny of modern society. It is a barbaric and immoral act aimed solely at demeaning muslim women.

It would be interesting to see what the court decides in the matter. It has already been observed by Justice Kurian Joseph that simply because a practise has been going on for a long time, it does not make it immune to the scrutiny of law and morality. The personal laws are also subject to the exception of morality and law and order along with health. It now upon the wisdom of the Supreme Court to decide on this very sensitive issue.