Supreme Court to take up plea against polygamy, nikah halala next month

A petition challenging the practices of polygamy and nikah halala prevalent in Muslim community will be heard by Supreme Court early next year. A bench headed by Chief Justice of India SA Bobde agreed to list the matter immediately after winter break when it was mentioned by petitioner Ashwini Kumar Upadhyay on Monday.

While the practice of polygamy is outlawed in India, an exemption has been made for the Muslim community under the Muslim Personal Law (Shariat) Application Act, 1937.

The Act provides for application of Muslim personal law in matters relating to marriage, succession etc among Muslim parties.

Similarly, the practice of nikah halala is also permitted. As per this practice, once a Muslim woman has been divorced, her husband is not permitted to take her back even if he had pronounced talaq under influence of any intoxicant, unless his wife undergoes Nikah-Halala, which involves her marriage with another man, who subsequently divorces her so that her previous husband can re-marry her.

The petitioner submitted that religious leaders, imams, maulvis, who propagate and support and authorize practices like nikah halala and polygamy are grossly misusing their position, influence and power to subject Muslim women. These practices which treat women as property violating their fundamental rights enshrined in Articles 14, 15 and 21 of the Constitution, it has been argued.

“It is submitted that the failure to secure the same equal rights and life of dignity for Muslim women violates their most basic human and fundamental right to life of dignity unmarred by gender discrimination, which in turn have a critical impact on their social and economic rights to say the least”, the petition states.

Upadhyay submitted that polygamy violates Section 494 of Indian Penal Code which prohibits bigamy and nikah halala amounts to rape under Section 375 of IPC.

When the matter was mentioned today, Justice Bobde queried on the antiquity of the practice asking whether it has been practised for over 1,000 years.

He then said that it will be listed immediately after (winter) vacation. Supreme Court closes on December 19 and reopens on January 6.