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For Plea Against Polygamy Supreme Court Takes Centre’s Response

personal laws must meet the test of constitutional validity and constitutional morality

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The Supreme Court on Wednesday sought a response from the Centre on a fresh plea that challenged the constitutional validity of the practice of polygamy and ‘nikah halala’ among Muslims in India.
The Supreme Court on Wednesday sought a response from the Centre on a fresh plea that challenged the constitutional validity of the practice of polygamy and ‘nikah halala’ among Muslims in India. Flickr
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The Supreme Court on Wednesday sought a response from the Centre on a fresh plea that challenged the constitutional validity of the practice of polygamy and ‘nikah halala’ among Muslims in India.

A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud issued the notice to the Centre and tagged the plea with similar petitions pending before it.

The fresh plea filed by Women Resistance Committee Chairperson Nazia Ilahi Khan, a practicing advocate at the Calcutta High Court, has challenged the practice of polygamy, ‘nikah halala’, ‘nikah mutah’ (temporary marriage among Shias) and ‘nikah misyar’ (short-term marriage among Sunnis) on the grounds that these were violative of the Constitution’s Articles 14, 15 and 21.

Under ‘nikah halala’, if a Muslim woman after divorce by her husband three times on different instances, wants to go back to him, she has to marry another person and then divorce the second husband to get re-married to her first husband.

“Declare the dissolution of the Muslim Marriages Act, 1939 unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it fails to secure for the Indian Muslim women the protection from bigamy which has been statutorily secured for Indian women from other religions,” said her plea filed through advocate V.K. Biju.

The apex court has been hearing pleas filed by Sameena Begum, Nafisa Khan, Moullium Mohsin and BJP leader and advocate Ashwini Kumar Upadhyay on the issue.

Article 14 guarantees equality before law, Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth and Article 21 guarantees protection of life and personal liberty.

Telling the court that though different religious communities are governed by different personal laws, Upadhyay had contended that “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”.

Pointing to the “appalling” affect of polygamy and other such practices on the Muslim women, senior counsel Mohan Parasaran had earlier told the apex court that the 2017 judgment holding instant ‘triple talaq’ as unconstitutional had left these two issues open and did not address them.

Polygamy, Man along with his 5 wives
Polygamy, Man along with his 5 wives. Flickr

A five-judge Constitution Bench headed by then Chief Justice J.S. Khehar (since retired), by a majority judgment in 2017, had said: “Keeping in view the factual aspect in the present case, as also the complicated questions that arise for consideration in this case (and, in the other connected cases), at the very outset, it was decided to limit the instant consideration to ‘talaq-e-biddat’ or triple talaq.

Also read: Goa Common Civil Code forbids neither Oral Divorce nor Polygamy among Muslims: Governor

“Other questions raised in the connected writ petitions, such as polygamy and ‘nikah halala’ (and other allied matters), would be dealt with separately. The determination of the present controversy may, however, coincidentally render an answer even to the connected issues.” (IANS)

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Triple Talaq Now Banned In India

While most Hindu personal laws have been overhauled and codified over the years, Muslim laws have been left to religious authorities and left largely untouched.

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Indian Muslim women talk while walking through a market in Ahmadabad, India. VOA

India’s government on Wednesday approved an ordinance to implement a top court ruling striking down the Muslim practice that allows men to instantly divorce.

The government decision came after it failed to get approval of Parliament a year after the court ruled that the practice of triple “talaq” violated the constitutional rights of Muslim women.

Most of the 170 million Muslims in India are Sunnis governed by the Muslim Personal Law for family matters and disputes. The laws include allowing men to divorce by simply uttering the Arabic word “talaq,” or divorce, three times — and not necessarily consecutively, but at any time, and by any medium, including telephone, text message or social media post.

Muslim
Triple Talaq continues to plague lives of  women, VOA News

The government will have another six months to get Parliament’s approval for the ordinance to become law. But in the meantime, suspects can be prosecuted using the ordinance.

Law Minister Ravi Shankar Prasad said that nearly 22 countries, including neighboring Pakistan and Bangladesh, have banned the practice and appealed to the opposition to approve the Muslim Women Protection of Rights on Marriage Bill.

India’s Muslim Law Board had told the court that while they considered the practice wrong, they opposed any court intervention and asked that the matter be left to the community. But several progressive Muslim activists decried the law board’s position.

Muslim
Muslim women hold placards during a protest against a bill passed by India’s lower house of Parliament last week that aims at prosecuting Muslim men who divorce their wives through the “triple talaq,” or instant divorce. VOA

After the Supreme Court verdict, Prime Minister Narendra Modi’s government introduced a bill criminalizing the practice and it was approved in December by the lower house of Parliament, where his party commands a majority. But it couldn’t get the approval of the upper house, where the opposition controls the majority of seats.

The main opposition Congress party is opposing a three-year prison sentence for the offenders and wants a parliamentary committee to discuss the issue to reach a consensus. It favors a lesser sentence.

Also Read:Nikon Launches its Mirrorless Cameras in India

In India, triple talaq has continued with the protection of laws that allow Muslim, Christian and Hindu communities to follow religious laws in matters like marriage, divorce, inheritance and adoption. While most Hindu personal laws have been overhauled and codified over the years, Muslim laws have been left to religious authorities and left largely untouched. (VOA)