“I will consider it… At an appropriate stage, I will constitute a Constitution Bench,” a Bench led by Chief Justice of India DY Chandrachud told advocate Ashwini Upadhyay – one of the petitioners—who has challenged nikah halala and Section 494 of the Indian Penal Code that allows polygamy.
The Supreme Court had on January 20 also said it will set up a fresh five-judge Constitution Bench to hear petitions seeking to declare Islamic practices of polygamy and ‘nikah halala’ unconstitutional.
“There are very important matters which are pending before a five-judge Bench. We will constitute one and bear this matter in mind,” it had told Upadhyay.
Filed by some Muslim women, NGOs and Upadhyay, the petitions challenging the validity of polygamy and ‘nikah halala’ were referred to a five-judge Constitution Bench in March 2018.
A five-judge Constitution Bench of Justice Indira Banerjee, Justice Hemant Gupta, Justice Surya Kant, Justice MM Sundresh and Justice Sudhanshu Dhulia had on August 30 last year issued notices to the Centre, National Human Rights Commission, National Commission for Women, National Commission for Minorities and others on nine petitions challenging these alleged discriminatory practices.
Upadhyay said a new Bench was needed to be set up as two of the judges on the previous Constitution Bench – Justice Banerjee and Justice Gupta – had already retired.
Polygamy allows a Muslim man to have four wives while under ‘nikah halala’, a Muslim woman wanting to remarry her husband after divorce, is forced to first marry another man, get the marriage consummated and then get divorced by him.
In 2017, the top court had declared the practice of instant triple talaq unconstitutional, saying it went against the basic tenets of the Holy Quran. It had, however, said petitions against polygamy and ‘nikah halala’ would be dealt with separately.
“Muslim law in so far it permits to have more than one wife at a time is against the very spirit of the Constitution as it discriminates on the basis of gender and there is no valid reason for continuing polygamy or bigamy in the national interest,” read a petition filed by a Lucknow-based NGO through advocate Vishnu Shankar Jain.
The petition challenged the validity of Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 that recognised bigamy or polygamy among Muslims and sought reading down Section 494 of IPC which allows such marriages among Muslims while making it punishable with seven-year jail term for members of other communities.
Upadhyay wanted the top court to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional as the practice of triple talaq, polygamy and nikah halala violated Articles 14, 15 and 21 (right to equality, right to non-discrimination and right to live with human dignity) of the Constitution and went against public order, morality, and health.
“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,” Upadhyay submitted.
Maintaining that Muslim Law is based on the Quran and the Hadith, All India Muslim Personal Law Board (AIMPLB) had earlier told the Supreme Court that it can’t be challenged on the ground of violation of fundamental rights as it’s not enacted by Parliament.
“The Mohammedan law is founded essentially on the holy Quran and the Hadith of Prophet Mohammed and thus it can’t fall within purview of expression ‘laws in force’ as mentioned in Article 13 of the Constitution and hence its validity cannot be tested,” AIMPLB had said in its application seeking to become a party to PILs challenging validity of Islamic practices of polygamy and ‘nikah halala’.
