SC Refers Fresh Plea Against Polygamy To Constitution Bench
The bench appointed senior lawyer and SCBA President Vikas Singh who appeared for the fresh petitioner Farjana, as an amicus curiae in the batch of petitions which will come up before a constitution bench
Three months after the Supreme Court sought the Centre’s stand on banning polygamy and nikah-halala on five petitions and referred them to a constitution bench, one more woman victim moved the apex cour today with a similar demand.
A bench of Chief Justice Dipak Misra and Justices D Y Chandrachud and A M Khanwilkar referred the fresh petition filed by one Farjana also to the same constitution bench by ordering it's tagging.
Significantly the bench appointed senior lawyer Vikas Singh who appeared for Farjana, as an amicus curiae in the matter.
“Petitioner is filing this petition under Article 32 of the Constitution 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”, said Farjana's petition
“Petitioner is a Muslim female by birth. Petitioner belongs to Lower Strata of Society and has been illegally divorced by her husband, leaving her and their daughter without any means of living with dignity and/or financial support”, it added.
The SC is already seized of five petitions- filed by two victims Nafisa Begum and Sameena Begum and two advocates Ashwini Upadhyay and Mohsin Kathiri challenging the constitutional validity of the polygamy and nikah-halala.Jamiat-Ulama-I-Hind moved the SC supporting the practices
On May 7 another victim, one Shabnam had also knocked the doors of the SC.
According to Sharia or the 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 process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.
They have demanded a ban on Polygamy and Nikah-Halala saying it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights.
They 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 recognize and validate the practice of polygamy and nikah-halala.
Jamiat-Ulama-i-Hind argue that the Constitution does not touch upon the personal laws and therefore the SC cannot examine the question of constitutional validity of the practices. They contend that even the apex court and various High Courts have on earlier occasions refused to interfere with practices sanctioned by personal law, an argument they advanced even in the triple talaq challenge matter too which the SC has already rejected.