A Supreme Court Constitution bench on Tuesday issued notice on a batch of pleas for striking down practice of polygamy and nikah halala in Muslims and scheduled the hearing on petitions after the Dusshera holidays.
Nine petitions challenging these practices were listed on Tuesday for hearing before a five-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh and Sudhanshu Dhulia.
The petitions have been filed by Muslim women and advocate Ashwini Upadhyay has challenged the constitutional validity of the polygamy and nikah halala. These cases were referred to the 5-judge bench by a 3-judge bench in March 2018.
On Tuesday, the apex court issued notices to the Central government, National Commission for Women, National Commission for Minorities, Law Commission, etc., and scheduled the matter for hearing after Dussehra holidays.
Upadhyay’s plea said the injury caused to the women as practice 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. The plea sought a direction to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional and violative of Articles 14, 15 and 21 of the Constitution, insofar as it seeks to recognise polygamy and nikah-halala.
“It is well settled that Common Law has primacy over the Personal Laws. Hence, this Hon’ble Court may declare that — Triple talaq is cruelty under Section 498A of the IPC, 1860, nikah halala is rape under Section 375 of the IPC,1860, and Polygamy is an offence under Section 494 of the IPC,1860,” said Upadhyay’s plea.
In August 2017, the top court held that the Muslim practice of ‘triple talaq’ is unconstitutional and struck it down by 3:2 majority. Polygamy allows a Muslim man to have four wives, and once a Muslim woman has been divorced, her husband is not permitted to take her back even if he had pronounced talaq under the influence of any intoxicant, unless his wife undergoes nikah halala, which involves her marriage with another man, who subsequently divorces her so that her previous husband can remarry her.
In 2017 verdict, the apex court had kept open the issue of polygamy and ‘nikah halala’, while quashing the practice of ‘triple talaq’. “It is submitted that religious leaders and priests like imams, maulvis, etc. who propagate, support and authorize practices like Talaq-E-Bidat, nikah halala and Polygamy are grossly misusing their position, influence and power to subject the Muslim women to such gross practices which treats them as chattel, thereby violating their basic rights enshrined in Articles 14, 15 and 21 of the Constitution”, said Upadhyay’s plea.
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