Breaking: SC Constitution Bench To Examine The Validity Of Polygamy And Nikah-Halala [Read All Petitions & Order]

A three Judge Bench of the Supreme Court on Monday agreed to hear the petitions challenging the Constitutional validity of Polygamy and Nikah-halala among Muslims.The Bench comprising CJI Dipak Misra and Justices AM Khanwilkar and DY Chanrachud was hearing a batch of petition challenging the practices of Polygamy and Nikah Halala. The petitions were filed by BJP leader Aswini Updahyay, Sameera Begum,Nafeesa Begum and Moullim Mohsin Bin Hussain Bin Abdad Al Kathiri.Significantly, referring the matter to a Constitution bench, the CJI-led bench issued notice to Union of India and Ministry of Law and JusticeTHE ARGUMENTSAt the outset senior advocate Parasaran appearing for Upadhyaya said the "challenge pertained to the appalling effect of polygamous marriage and Nikah Halala which was left open in the triple talaq judgment.Advocate Shekhar added: "Unfortunately in the talaq judgment these connected issues have not been dealt with"CJI then asked "What did the majority say?"Parasaran then replied: "The bench at the threshold itself said triple talaq issue only will be decided."CJI: Yes. We too see these two aspects have not been dealt with. Ok anyways we will issue notice". THE ORDER"LD counsel for petitioners submit that the challenge in these petitions pertain to prevalent practice of Polygamy and Nikah Halala arguing that they are unconstitutional.Various grounds have been cited in support of their stand on these two practices.They contend that these two practices cannot be permitted under the Constitution""It is contended by them that the Constitution Bench in 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."."Keeping in view the importance of the matter let it be placed before the Chief Justice for constitution of an appropriate Constitution bench"The bench also directed that a copy be served on the Central Agency.The bench however refused to issue notice to Law Commission who were made parties in all petitions.WHO ARE LAWYERS APPEARINGSenior Advocate V Shekhar and lawyer Gopal Shankaranarayanan appeared respectively for petitioner victims Sameena Begum and Nafiza Khan respectively. Senior advocates Mohan Parasaran and Sajan Povayya represented petitioners Ashwini Upadhyaya and Mohsin Kathiri who are also advocates.They argued issues of polygamy and ‘nikah halala’ were also part of the order of a two-judge Bench (October 2015) which had referred to the Constitutional bench the three issues, including the practice of triple talaq among Muslims.That bench had said it should be looked into if triple talaq, polygamy and nikah halala were resulting in gender discrimination in the Muslim community and if these should not be considered a violation of fundamental rights under the Constitution. But the Constitution bench which decided triple talaq matter left these two open for consideration at a later stage, they argued.Petition by BJP Leader Ashwini Upadhyay BJP leader Ashwini Upadhyay in his petition, prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional and violative of Articles 14, 15 and 21 of the Constitution, insofar as it seeks to recognize and validate the practice of polygamy and nikah-halala.Upadhyay seeks a declaration that provisions of the IPC are applicable on all Indian citizens and triple-talaq is a cruelty under Section 498A of the IPC, nikah-halala is rape under Section 375 of the IPC, and polygamy is an offence under Section 494 of the IPC.He has also sought directions to the Centre to take appropriate action against the person, institution and organizations, running Sharia courts to decide the cases related to marriage, divorce, inheritance and succession or other similar matters besides a direction to the Law Commission of India to consider the civil laws of developed countries, particularly the civil laws of France, Japan and China and publish its Report in spirit of Article 44 of the Constitution within three months.Polygamy allows a man to have more than one wife while nikah halala is a practice where a Muslim woman divorced by her husband can remarry her only after she marries someone else, consummates the marriage and then gets a divorce.“It is well settled that Common Law has primacy over the Personal Laws. Hence, the court should 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.“The Constitution has primacy over the Common Law and Common Law has primacy over Personal Laws. So, India doesn’t need another personal law on talaq, polygamy and halala,” he said.Upadhyay said the Executive has not taken any steps to prohibit triple talaq, polygamy and nikah-halala and declare them an offence under the Indian Penal Code ...

Breaking: SC Constitution Bench To Examine The Validity Of Polygamy And Nikah-Halala [Read All Petitions & Order]

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