Shyam Diwan To Argue For Polygamy Ban; Given Liberty By SC To File IA In Main Matter

Four months after the Supreme Court sought the Centre’s stand on banning polygamy and nikah-halala on six petitions and referred them to a constitution bench, one more woman victim moved the apex court with a similar demand.

A bench of Chief Justice Dipak Misra, Justices D Y Chandrachud and A M Khanwilkar yesterday granted senior advocate Shyam Diwan who represented the fresh petitioner Zikra to file an Interlocutory application in the main batch of petitions which has already been referred to a constitution bench.

THE ORDER

Having heard Mr.Shyam Diwan, learned senior counsel for the petitioner, we grant him liberty to file an interlocutory application in W.P.(C)No.222 of 2018. If such an interlocutory application is filed, learned senior counsel is permitted to address the Court on merits. With the aforesaid observation and liberty, the writ petition stands disposed of.

 The petition filed by Zakira said: “Petitioner is a 21 years old Muslim lady, mother of two children and unemployed housewife and has no income.She is resident of Turtipura Sitara Masjid, PS Nakhasa, Sambhal (U.P.). She was married to Mr. Dawood in March 2013. In the marriage, her parents gave stridhan exceeding their capacities. However, petitioner’s husband and her in-laws used to beat her for demand of dowry”.

It added: “The petitioner in wake of saving her family kept mum. After beating, her husband on 16.06.2018 by giving Triple Talaq, thrown her out of the matrimonial house. After 2-3 days, petitioner’s husband came to house of the petitioner’s parents and took her back under conspiracy. After reaching house petitioner’s husband changed his colours and told to the petitioner- “I have asked Muftis and they told me that you are no longer my wife. I brought to house so that Halala can be practised so that you become my wife again”. The husband told that Halala will be done by his younger brother. The petitioner totally get scared by his colours and was confused that what to do. She has two small children and by looking at their faces, petitioner became helpless”

The SC is already seized of six petitions- filed by three victims Nafisa Begum, Sameena Begum, Farzana and two advocates Ashwini Upadhyay and Mohsin Kathiri challenging the constitutional validity of the polygamy and nikah-halala. Jamiat-Ulama-I-Hind moved the SC supporting the practices

On May 7 another victim, one Shabnam had also knocked the doors of the SC.

According to Sharia or the Muslim personal law, men are allowed to practice polygamy that is, they can have more than one wife at the same time, up to a total of four.

'Nikah halala' is a process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.

They have demanded a ban on Polygamy and Nikah-Halala saying it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights.

They prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional and violative of Articles 14 (right to equality) , 15 (discrimination on ground of religion) and 21 (right to life )of the Constitution, insofar as it seeks to recognize and validate the practice of polygamy and nikah-halala.

Jamiat-Ulama-i-Hind argue that the Constitution does not touch upon the personal laws and therefore the SC cannot examine the question of constitutional validity of the practices. They contend that even the apex court and various High Courts have on earlier occasions refused to interfere with practices sanctioned by personal law, an argument they advanced even in the triple talaq challenge matter too which the SC has already rejected.