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 Justice
At 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".
"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 APPEARING
Senior 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 even as the Supreme Court had on 22 August 2017 declared triple talaq unconstitutional while also observing that practices permitted or not prohibited by religion do not become a religious practice or a positive tenet of the religion and a sinful practice does not acquire the sanction of religion merely because it is practiced since long time.
“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. However, police does not lodge FIR under sections 498A, 494 and 375 of the IPC, respectively, for these offences,” said Upadhyay, in his petition filed through advocate RD Upadhyay.
Citing the Sarla Mudgal case, wherein it was noted that bigamous marriage has been made punishable amongst Christians by the Christian Marriage Act, 1872, amongst Parsis by the Parsi Marriage Act, 1936 and amongst Hindus, Buddhists, Sikhs and Jains by the Hindu Marriage Act, 1955,however, Upadhyay said, the Muslim Marriages Act, 1939, does not secure for Muslim women the protection from bigamy, which has been statutorily secured for women belonging to other religions, as the Executive has not declared that provisions of the Indian Penal Code, 1860, are applicable on all Indian citizens.
Petition By Sameera Begum
Sameera Begum approached the Supreme Court urging that polygamy and nikah-halala be criminalised under the Indian Penal Code and Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional as it seeks to recognize and validate the “draconian” practices.
The 40-year-old Sameena Begum from South Delhi moved the Supreme Court sharing her story of how her first husband gave her ‘triple talaq’ when she complained about his torture and her second husband, who was already married, gave her ‘triple talaq’ over the phone when she was pregnant with their child.
In her petition filed through advocate Archana Pathak Dave, Sameena said she was constrained to file this petition because she was a victim of polygamy herself and was 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.
Sameena shared that she got married in the year 1999 to one Javed Anwar and two sons were born out of this marriage. She faced immense torture, assaults and demands for money in the matrimonial house.
After repeated torture, when Sameena filed a complaint under Section 498A IPC, Javed sent her a letter giving her ‘triple talaq’.
Sameena started living with her parents before marrying a second time in 2012 to a man named Riyazuddin, who was already married to one Arifa.
Laws of Marriage Can’t Be Against Constitution
“The Constitution envisages a secular society. Article 44 of the Constitution prescribes that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. To be treated equally before law and get equal protection of law is a cherished right of every person under the Indian Constitution. This is included in the Part III on Fundamental Rights- Right to equality.
“According to Article 13 of the Constitution, all laws in force or to be made must be consistent with the Provisions of Part III on Fundamental Rights and law includes any custom or usage which has the force of law in India. Thus, marriage laws also must not be inconsistent with the fundamental rights, particularly the Articles 14, 15 and 21,” it says.
Nikah-Halala Be Declared Rape
“Triple talaq, polygamy, and nikah-halala is arbitrary and violative of the Articles 14, 15 and 21 of the Constitution and injurious to public order, morality and health also. Thus, these can be superseded by the state just as it prohibited human sacrifice or practice of sati. Triple talaq, polygamy and nikah halala (can be declared) as an offence under sections 498A, 375 and 494 of the IPC, respectively. However, the Executive is inactive in this regard,” said Sameena.
Petition by Nafeesa Khan
Nafeesa Khan filed the petition seeking a writ, order or direction in the nature of mandamus to declare Polygamy and Nikah-Halala, practiced in Muslim Community, illegal and unconstitutional for being violative of Articles 14, 15, 21 and 25 of the Constitution, and a declaration that Extra-Judicial Talaq is a cruelty under Section 498A of the IPC, Nikah-Halala is an offence under Section 375 of the IPC, and Polygamy is an offence under Section 494 of the IPC,1860.
She has alleged that her husband married another woman without divorcing her legally.
““Muslim Personal Law permits Muslim men to have up to four wives at once. Therefore, by virtue of Muslim Personal Law, S.494 is rendered inapplicable to Muslims, and no Muslim wife has the avenue of filing a complaint against her husband for the offence of bigamy. This is in blatant contravention of Articles 14, 15 and 21 of the Constitution of India”.
Moullim Mohsin Bin Hussain Bin Abdad Al Kathiri’s petition
He filed a PIL under the Article 32 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 recognize and validate the practice of Nikah Halala, Nikah Mutah and Nikah Misyar and Polygamy.
“The Muslim Personal Law (Shariat) Application Act, 1937, by providing for the application of Muslim personal law in matters relating to marriage where the parties are Muslims, conveys a wrong impression that the law sanctions Nikah Halala, Nikah Mutah and Nikah Misyar and Polygamy, which is not only grossly injurious to public order, morality and health, but also violative of the fundamental rights of Muslim women guaranteed under Articles 14, 15 and 21 of the Constitution.
The Constitution neither grants any absolute protection to any personal law of any community that is unjust, nor exempts personal laws from the jurisdiction of the Legislature or Judiciary. The concept of “Constitutional Morality” has been expounded by a 5-judge bench of this Hon’ble Court in Manoj Narula v. Union of India, [(2014) 9 SCC 1] wherein it was observed that the Constitution of India is a living instrument, and the principle of constitutional morality, essentially means, to bow down to the norms of the Constitution, and to not act in a manner, which is arbitrary or violative of the rule of law, since commitment to the Constitution is a facet of constitutional morality”
He also submitted that Muslim Personal Law (Shariat) Application Act, 1937, by providing for the application of Muslim personal law in matters relating to marriage where the parties are Muslims, conveys a wrong impression that the law sanctions the practices of halala and polygamy, which is grossly injurious to the fundamental rights of the married Muslim women and offends Articles 14, 15, 21 and 25 of the Constitution. It is, accordingly, submitted that the Muslim Personal Law (Shariat) Application Act, 1937, which is subject to the Constitution, is invalid in so far as it seeks to recognise and validate the practices of nikah halala and polygamy.
Read the Order & Petitions Here