SC asks government to specify its stand on Polygamy

Team SoOLEGAL 27 Mar 2018 11:25am

SC asks government to specify its stand on Polygamy

New Delhi :  A three-judge bench of the Supreme Court led by Chief Justice Dipak Misra has agreed to examine the constitutional validity of polygamy along with the Muslim marriage practice of Nikah Halala, Nikah Misyar and Nikah Mutah.

The bench also issued notices to the Centre, the Women & Child Development Ministry and the Law Ministry, directing them to file their replies. The bench referred the matter to a 5 judge  Constitution Bench to adjudicate on the issue.

Seven months after it quashed triple talaq, the Supreme Court  agreed to hear four petitions including two filed by female victims seeking a ban on controversial Islamic practices such as polygamy and nikah halala.A batch of pleas is led by advocate Ashwini Kumar Upadhyay, seeking a ban on the Muslim marriage practice and questioned the validity of Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937.The two other petitioners are Delhi BJP leader and SC advocate Ashwini Upadhyay and lawyer Mohsin Kathiri.

In August 2017, a constitution bench of the top court, by a 3:2  majority, declared talaq-e-bidat (instant triple talaq) as illegal. At the time, the bench led by then Chief Justice of India JS Khehar had isolated the issue of polygamy and nikah halala with the intent of looking into it at a later date.

Shortly, on December 28, the Lok Sabha passed Muslim Women (Protection of Rights on Marriage) Bill, 2017, that criminalises the practice of triple talaq.

According to Sharia or Muslim personal law, men are allowed to practice polygamy that is they can have more than one wife at the same time, up to a total of four.

Nikah halala is a custom intended to curb the incidence of divorce as under it a man cannot remarry his former wife unless she marries another man, consummates the marriage, gets a divorce and observes a period of separation period called iddat.

"It is contended by them that the constitution bench which heard 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. They also contend that these two issues also should be dealt by a constitution bench," said the court.

Sameena has approached the court being a victim of polygamy herself and also moved by the plight of thousands of Muslim women across the country suffering due to the draconian practices of polygamy and nikah halala that are rampant in the Muslim society, said her lawyer Archana Pathak Dave.

"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," she added.

Upadhyay in his petition, prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional and violative of Articles 14 (right to equality), 15 (discrimination on ground of religion) and 21 (right to life) of the Constitution, insofar as it seeks to recognise and validate the practice of polygamy and nikah halala.

He has also sought directions to the Centre to take appropriate action against the person, institution and organisations, running Sharia courts to decide the cases related to marriage, divorce, inheritance and succession or other similar matters.

Besides polygamy and nikah halala, the third petitioner and advocate Mohsin Kathiri has also challenged nikah mutah and nikah misyar, which literally means "pleasure marriage".

It is a verbal and temporary marriage contract that is practiced in the Muslim community in which duration of marriage and the mahr a mandatory payment in the form of money or possessions paid or promised to be paid by the groom or grooms father to the bride at the time of marriage is specified and agreed upon in advance.

It is a private contract made in a verbal format. The challenge to polygamy comes at a time when the Bill to make triple talaq a crime with provision for three years jail for husband is pending in Parliament.

The top court on August 22 last year set aside triple talaq as a "manifestly arbitrary" practice, not protected by Article 25 (freedom of religion) of the Constitution.

It had declared it as "gender discriminatory and violative of right to equality".

It had then left the two issues of polygamy and nikah halala open saying its validity would be examined by SC at a later stage.

The ban on triple talaq too had come following a court battle led by five victims Shayara Bano, Gulshan Parveen, Ishrat Jahan and Afreen Rehman who suffered repeated threats from radical elements within the  community.

Tagged: SC   Polygamy   Sharia law   Centre  
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