Delhi Woman Moves SC For Criminalising Polygamy, Nikah-Halala [Read Petition]

Victimized by polygamy, a social activist and a mother of three has knocked the doors of the Supreme Court urging that polygamy and nikah-halala be criminalised under the Indian Penal Code and Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional as it seeks to recognize and validate the “draconian” practices.

The 40-year-old Sameena Begum from South Delhi moved the Supreme Court sharing her story of how her first husband gave her ‘triple talaq’ when she complained about his torture and her second husband, who was already married, gave her ‘triple talaq’ over the phone when she was pregnant with their child.

In her petition filed through advocate Archana Pathak Dave, Sameena said she was constrained to file this petition because she was a victim of polygamy herself and was moved by the plight of thousands of Muslim women across the country suffering due to the draconian practices of ‘polygamy’ and ‘nikah- halala’ that are rampant in the Muslim society.

Sameena shared that she got married in the year 1999 to one Javed Anwar and two sons were born out of this marriage. She faced immense torture, assaults and demands for money in the matrimonial house.

After repeated torture, when Sameena filed a complaint under Section 498A IPC, Javed sent her a letter giving her ‘triple talaq’.

Sameena started living with her parents before marrying a second time in 2012 to a man named Riyazuddin, who was already married to one Arifa.

Soon after Sameena gave birth to their child, Riyazuddin gave her triple talaq over the phone.

Since then Sameena is living with her three children and has started working for the welfare of similarly placed women.

Sameena’s petition is the second such plea filed this week, the first being moved by an advocate and activist Ashwini Kumar Upadhyay who raised the issue of injury caused to Muslim woman due to practices such as polygamy and nikah-halala.

“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,” Upadhyay had said in his petition.

Sameena said in his petition, “India recognizes a plural legal system, wherein different religious communities are permitted to be governed by different ‘personal laws’. There could be no dispute, that different religious community can have different laws, but personal laws must meet the test of constitutional validity and constitutional morality, in as much as, they cannot be violative of Articles 14, 15 and 21 of the Constitution.”

She said the concept of polygamy came into the picture in seventh century after Muslims were defeated in the Battle of Uhud near Medina between early Muslims and the inhabitants of Mecca, leaving behind widows and orphans.

“The concept of polygamy was allowed in the verse because of utmost concern for the welfare of women and orphans who were left behind in the battle. It is pertinent to mention that by no means it is a general licence to Muslims in present times to marry with more than one woman,” she said.

Muslim Men Out Of Purview Of Polygamy 

Sameena said in her petition that the Muslim Marriage Dissolution Act 1939 provides nine grounds for dissolution of marriage, including impotency, incapacity to fulfill martial obligations and cruelty but there is no eligibility pre-condition for marriage. There is also no requirement for Muslim husband that the permission of the first wife is to be taken before contracting second marriage. As a result Muslim male is out of purview of offence of polygamy.

“It is illegal for a married Muslim female to marry a second time during subsistence of first marriage and such second marriage is void. As marriage is a contract in Islam, the girl can include a condition in marriage contract i.e., nikahnama that boy shall not marry during the subsistence of that marriage. But, this will make the second marriage as a breach of contract but still not a ground for making polygamy void,” the petition said.

Laws of Marriage Can’t Be Against Constitution

“The Constitution envisages a secular society. Article 44 of the Constitution prescribes that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. To be treated equally before law and get equal protection of law is a cherished right of every person under the Indian Constitution. This is included in the Part III on Fundamental Rights- Right to equality.

“According to Article 13 of the Constitution, all laws in force or to be made must be consistent with the Provisions of Part III on Fundamental Rights and law includes any custom or usage which has the force of law in India. Thus, marriage laws also must not be inconsistent with the fundamental rights, particularly the Articles 14, 15 and 21,” it says.

Nikah-Halala Be Declared Rape

“Triple talaq, polygamy, and nikah-halala is arbitrary and violative of the Articles 14, 15 and 21 of the Constitution and injurious to public order, morality and health also. Thus, these can be superseded by the state just as it prohibited human sacrifice or practice of sati. Triple talaq, polygamy and nikah halala (can be declared) as an offence under sections 498A, 375 and 494 of the IPC, respectively. However, the Executive is inactive in this regard,” said Sameena.