Supreme Court Transfers To Itself Petition In HC Challenging Validity Of Shariat Act & Polygamy In Muslim Personal Law

In March last year, the High Court Bench of Justices Devendra Kumar Upadhyaya and Subhash Vidyarthi issued a notice to the Attorney General for India while hearing the PIL filed by the Hindu Personal Law Board.

The Union, however, sought the transfer of this petition to the Supreme Court because identical issues are pending consideration in the Constitution Bench's case (Ashwini Kumar Upadhyay Vs. Union Of India). 

Today, when the matter came up before the Bench of Justices Surya Kant and K. V. Viswanathan, it was pointed out that even though the notice was issued, the Respondent (Hindu Personal Law Board) did not enter an appearance. Thus, observing that the issues raised are broadly under consideration before the Constitution Bench, the Court transferred the instant petition and tagged the matter along with it. 

“It seems that the issues which have been raised in the HC in the above-mentioned Writ Petition are broadly under consideration before the constitution bench in WP No. 202 of 2018. Consequently, we deem it appropriate to transfer the Writ petition in this Court and tag with WP No. 202 of 2018.,” the order marked.

A batch of petitions challenging the constitutional validity of polygamy and Nikah Halala, which is allowed by Muslim personal law, is pending before the Constitution Bench of the Supreme Court. It may be noted that in 2018, the bench led by then CJI Deepak Misra referred these petitions to a 5-judge bench. 

Contents Of The Present PIL

To elaborate, the PIL has assailed the Muslim Personal Law (Shariat) Application Act 1937 on the ground that it permits Muslims to perform polygamy. However, on the other hand, the polygamy culture was followed by Hindus, including Buddhists, Jains, and Sikhs, but it is now prohibited by law.

Against this backdrop, it has also been argued that restricting Hindus, Jains, Sikhs, and Buddhists to practice polygamy and allowing the same to be practiced by the Muslims is discrimination only on the grounds of religion and so violative of fundamental rights guaranteed by Article 15.

Further, the PIL also stated that Article 44 of the Constitution mandates the legislature to come up with a common civil code applicable to all citizens of the nation. While the government enacted personal laws for Hindus, including Buddhists, Jains, and Sikhs, it did not dare to interfere with the personal laws of Muslims.

As far as section 494 IPC is concerned, it was argued that excluding Muslims from the scope of punishment is also a form of discrimination. Thus, it should either be applied to all citizens belonging to any religion or should apply to none.

“Either the bigamy by any citizen in the territory of the Bharat be made a punishable offence means either the provision in section 494 IPC is applied on all citizens belonging to any religion or it should apply on none means that the provision in article 15 which mandates the state from discriminating amongst its citizens 'only on the ground of religion 'be respected and applied on all citizens without any discrimination in any manner.,” the petitioner argued.

Case Title: UNION OF BHARAT v.  HINDU PERSONAL LAW BOARD AND ANR., T.P.(C) No. 2541/2023