SC begins examination of Muslim practices such as polygamy, nikah halala

The bench, headed by justice Indira Banerjee and comprising judges Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia, issued notice to the Centre on a separate petition challenging polygamy, terming it to be discriminatory, exploitative and anti-woman

A five-judge constitution bench of the Supreme Court on Tuesday began hearing a bunch of petitions challenging the constitutional validity of several Muslim religious practices, including nikah halala and polygamy, and sought responses from the National Human Rights Commission (NHRC), National Commission for Women (NCW) and National Commission for Minorities (NCM) before the next hearing next month.

Supreme Court of India. (PTI File Photo)

The bench, headed by justice Indira Banerjee and comprising judges Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia, issued notice to the Centre on a separate petition challenging polygamy, terming it to be discriminatory, exploitative and anti-woman.

The petition filed by five Hindu women, led by Kiran Singh and an NGO, challenged the practice on the ground that it went contrary to the Indian Penal Code (IPC), which punishes people practicing polygamy under Section 494, with a maximum sentence of up to seven years.

The bench issued notice to the Centre for its response and on other pending petitions challenging the practice of nikah halala, nikah misyar and nikah mutah, besides polygamy, the top court added NHRC, NCW and NCM as parties on an oral request by senior advocate Shyam Divan appearing for one of the petitioners – BJP leader Ashwini Kumar Upadhyay.

“Since notices have to go to so many persons, we will have it after Dussehra vacations,” the bench said.

The petition filed by the Hindu woman challenging polygamy was argued by advocate Vishnu Shankar Jain, who demanded that this practice among Muslims permitted under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 must be struck down as unconstitutional.

The petitioners said that since there exists a clear bar under the law on polygamous relationships under Section 494 of the IPC, such personal laws make the provision of the section discriminatory as other religions are unable to enjoy this benefit.

“In India, the irony is that bigamy has been made punishable under Section 494 of IPC, subject to applicability of personal law. The question is as to whether the State can make criminal law in such a manner which may create discrimination and same act may be punishable for someone but for others enjoyable,” Jain quoted from the petition.

The system of bigamy is a thing of the past and has no place in the present day scenario; there is unanimity between nations that such practice is unscrupulous, discriminatory, exploitative and anti-women and must come to an end, the plea added.

In August 2017, the Supreme Court struck down the practice of triple talaq, by a 3:2 majority, as unconstitutional as it was found to be discriminatory and arbitrary qua Muslim women. The court’s verdict came on a petition filed by affected Muslim women led by Shayara Bano.

Within a year after the verdict, several petitions were filed by Muslim women and Muslim Women Resistance Committee questioning similar practices prevailing in the Muslim religion that were equally discriminatory and exploitative against women.

They stated in their pleas that Islamic law permitted a man to marry more than one woman. He can divorce her and remarry the same woman twice, also known as nikah halala.

Nikah mutah practiced by certain Shia Muslim sects is a temporary marriage contract where parties can fix the duration and mehr amount. Another practice under consideration of the Court included nikah misyar where both parties to the marriage contract can agree to forego several marital rights, including cohabitation, wife’s right to housing and maintenance money and husband’s obligation to home keeping.