Supreme Court To Hear Cases Challenging Validity Of Polygamy & Nikah Halala In Muslim Personal Law In October; Issues Notice To NHRC, NCW & NCM

A Constitution Bench of the Supreme Court will start hearing a batch of petitions challenging the constitutional validity of the practice of polygamy and Nikah Halala allowed by Muslim personal law after the Dussehra holidays (in the second week of October).

Eight petitions challenging these practices were listed on Tuesday before a 5-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia.

The bench issued notices to the National Human Rights Commission, National Commission for Women and the National Commission for Minorities and posted the petitions for hearing after the Dussehra holidays.

The cases were referred to the 5-judge bench by a 3-judge bench in March 2018.

The petitions have been filed by few Muslim women Naisah Hasan, Sabnam, Farjana, Sameena Begum and also advocates Ashwini Upadhyay and Mohsin Kathiri challenging the constitutional validity of the polygamy and nikah-halala. An organisation named Muslim Women's Resistance Committee has filed one of the petitions.  Jamiat-Ulama-I-Hind has intervened in the case supporting the practices.

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.

The petitioners 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.

Cases : Ashwini Kumar Upadhyay versus Union of India |W.P.(C) No. 202/2018 and connected cases

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