Months after the Supreme Court declared triple talaq unconstitutional, advocate-activist Ashwini Upadhyay has filed a petition urging that provisions of Muslim Personal Law which validates practice of polygamy and nikah halala be declared unconstitutional.
Upadhyay has, 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.
The petitioner said the apex court had said it would take up the issue of polygamy and nikah-halala after hearing the issue of triple talaq but “surprisingly, the petition was disposed of without hearing polygamy and nikah-halala”.