Supreme Court Agrees To Form Constitution Bench To Hear Cases Challenging Validity Of Polygamy & Nikah Halala In Muslim Personal Law

Eight petitions challenging these practices were previously listed before a 5-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia. The bench had issued notices to the National Human Rights Commission, National Commission for Women and the National Commission for Minorities.

The petitioner-in-person, Advocate, Mr. Ashwini Kumar Upadhyay mentioned before a Bench comprising the Chief Justice of India, D.Y. Chandrachud, Justice Hima Kohli and Justice J.B. Pardiwala that since Justices Indira Banerjee and Hemant Gupta have retired, a new Constitution Bench be formed for hearing the batch of pleas.

The CJI assured, "We will form a Bench."

The cases were referred to a 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 recognise and validate the practice of polygamy and nikah-halala.

[Case Title: Ashwini Kumar Upadhyay v. Union of India W.P.(C) No. 202/2018]