The Lucknow bench of the Allahabad high court has issued a notice to the Attorney General (AG) of India on a public interest litigation (PIL) petition filed by the Hindu Personal Law Board seeking declaration of section 494 of the Indian Penal Code (IPC) as unconstitutional as it, according to the petitioner, discriminates between people on the basis of religion.
Under IPC section 494, if a person marries for the second time during the lifetime of the first wife or husband without getting a divorce, the marriage is void. For this offence, there is a provision for seven years’ jail and a fine. The law is applicable to Hindus, Sikhs and Christians but not to Muslim men who have the right to marry four times under the Muslim Personal Law (Shariat) Application Act, 1937.
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A division bench of justices Devendra Kumar Upadhyay and Subhash Vidyarthi passed the order on February 27 on the PIL filed by Pawan Kumar Das Shastri, general secretary of the Hindu Personal Law Board.
“Since validity of Muslim Personal (Shariat) Application Act, 1937, is under challenge in this PIL and also that a declaration has been sought from this court for declaring section 494 IPC to be ultra vires, let notices be issued to the Attorney General,” said the court.
{{/usCountry}}“Since validity of Muslim Personal (Shariat) Application Act, 1937, is under challenge in this PIL and also that a declaration has been sought from this court for declaring section 494 IPC to be ultra vires, let notices be issued to the Attorney General,” said the court.
{{/usCountry}}Earlier, in March 2018, a three-judge bench of the Supreme Court issued a notice to the Centre on a batch of petitions challenging polygamy and the three other practices in Muslim personal law as unconstitutional. It had also referred the matter to a constitution bench for an authoritative pronouncement.
While the main petition was filed by advocate Ashwini Upadhyay, Sameera Begum, Nafeesa Begum and Mohsin Bin Hussain Bin Abdad Al Kathiri have submitted intervention applications.
Upadhyay challenged section 2 of the Muslim Personal Law (Shariat) Application Act as being unconstitutional and violative of Articles 14 (equality), 15 (non-discrimination) and 21 (life and liberty) of the Constitution.
Polygamy, nikah halala, nikah mutah and nikah misyar are recognised by the personal law.
According to Upadhyay, nikah halala can be viewed as rape under Section 375 of the IPC, and polygamy is an offence under Section 494 of the IPC which deals with bigamy.
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In August 2022, a constitution bench also issued notices to the National Human Rights Commission, National Commission for Women and the National Commission for Minorities on this batch of petitions.
In 2017, the top court had declared the practice of instant triple talaq unconstitutional, saying it went against the basic tenets of the Holy Quran. It had, however, said petitions against polygamy and nikah halala would be dealt with separately.
The Allahabad high court has granted six weeks’ time to the Attorney General to file a reply. The court also ordered the Hindu Personal Law Board to file a response within two weeks after the Attorney General submits his reply. The court listed the case for the next hearing after eight weeks.
Advocate Ashok Pandey, who represented the petitioner in court, said: “Section 494 of the IPC discriminates on the basis of religion. Therefore, it should be scrapped.”
“The Hindu Personal Law Board is a trust registered under the Indian Trust Act formed for the protection and promotion of Hindu Personal Laws,” Pandey said.
The petitioner said polygamy was prevalent among Hindus, including Buddhists, Jains and Sikhs, but it has been prohibited by law and declared void under the Hindu Marriage Act, 1955 and made a punishable offence under section 494 of the IPC.
But Muslims are still being permitted to perform polygamy because of application of the Muslim Personal law (Shariat) Application Act, 1937, the petitioner added.