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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

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)

Next Story

Blacklisting Muslim Brotherhood Could Complicate US Diplomacy

Designating Egypt's Muslim Brotherhood as a foreign terrorist organization could pit the United States against new potential enemies

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FILE - Supporters of the Muslim Brotherhood set things aflame to block a street during clashes with Egyptian forces following their protest against the government in Cairo's Matariya district, Egypt, June 30, 2015. VOA
 Designating Egypt’s Muslim Brotherhood as a foreign terrorist organization could pit the United States against new potential enemies in the Muslim world, experts say.

Analysts argue the designation could hamper U.S. Middle East diplomacy and efforts to promote democratic change in the region.

“For America to write off this important part of politics in the Middle East is really to hobble any kind of intellectual debate and the freedom of American diplomats to operate in this region,” said Joshua Landis, director of the Center for Middle East Studies at the University of Oklahoma.

“America is going to throw a major spanner [wrench] into the works of any kind of democratic and political evolution in the Middle East if it does this,” he told VOA.

blacklisting, muslim, US
FILE – President Donald Trump meets with Egyptian President Abdel Fattah el-Sissi in the Oval Office of the White House, April 9, 2019. VOA

The reaction came after the White House recently said President Donald Trump is mulling over designating Egypt’s Muslim Brotherhood as a foreign terrorist organization.

“The president has consulted with his national security team and leaders in the region who share his concern, and this designation is working its way through the internal process,” White House press secretary Sarah Sanders said in an email to reporters.

Egypt’s efforts

The U.S. announcement came nearly three weeks after a visit by Egyptian President Abdel-Fattah el-Sissi to the White House.

El-Sissi, who toppled former President Mohammed Morsi in 2013, has outlawed the Muslim Brotherhood and thrown Morsi and many of the group’s leaders in jail.

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Morsi was the first Muslim Brotherhood president who came to power after winning the 2012 presidential elections in Egypt. Morsi had led the overthrow of Hosni Mubarak in 2011.

But since assuming power, el-Sissi has been urging U.S. officials to label the Muslim Brotherhood as a terrorist organization.

Saudi Arabia and the United Arab Emirates, two Sunni powers in the Middle East, also have been lobbying Washington to designate the Islamist group.

‘Neo-conservative team’

blacklisting, muslim, US
FILE – Supporters of ousted Islamist President Mohamed Morsi chant slogans and raise an image of him after the Muslim Brotherhood called on its supporters to take to the streets on the anniversary of the 2011 uprising, in Cairo, Egypt, Jan. 25, 2016. VOA

During the first weeks of his administration in 2017, Trump had considered the designation but then dropped the idea.

The current U.S. national security team, however, has been in favor of targeting Islamist groups such as the Muslim Brotherhood, some analysts charge.

“President Trump has got this new national security team with [Secretary of State Mike] Pompeo and [National Security Adviser John] Bolton. This is a much more neo-conservative crowd than the first year of Trump’s [presidency],” Mideast expert Landis said.

“So it’s possible that they could actually entertain the idea of supporting Egypt, Saudi Arabia and United Arab Emirates in sanctioning the Muslim Brotherhood and designating them,” he added.

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Fawzi Soufiane, a Tunisia-based expert on Islamist movements, says there are more radical groups in Egypt and other parts of the Middle East that the U.S. should consider targeting.

“For example, there are Salafis in Egypt who are much more radical than the Muslim Brotherhood. So clearly any potential designation of the Muslim Brotherhood won’t be effective in terms of combating terrorism in the Middle East,” he told VOA.

“The Muslim Brotherhood is perhaps the least violent group when it comes to the political spectrum of Islamist parties,” Soufiane said.

Extremist ideology

blacklisting, muslim, US
FILE – Muslim Brotherhood members are seen behind bars during a court session in Cairo, Egypt, Dec. 2, 2018. VOA

The Muslim Brotherhood, founded in 1928 in Egypt, is a social, religious and political organization that promotes a governance system run by Islamic law.

The Sunni Muslim group has dozens of affiliates across the Muslim world. Although it has used violence to achieve its political objectives in the past, the group currently eschews such actions.

But some experts believe that the Islamist group continues to promote its agendas through violence by aligning itself with more extremist organizations.

The Muslim Brotherhood “has been funding and supporting extremist groups through an extensive network of humanitarian and political organizations in Syria, Libya and elsewhere,” said Majdi al-Daqaq, editor-in-chief of October magazine, a pro-government publication in Cairo.

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“Even if we assumed that Muslim Brotherhood is not involved in armed violence, it is still active in promoting extremist political ideology throughout the region,” he told VOA in a phone interview.

Al-Daqaq added that the Muslim Brotherhood “also has direct ties with the Palestinian militant group Hamas,” which is a U.S.-designated terrorist organization.

Financial networks

Designating Egypt’s oldest Islamist movement a foreign terrorist organization would allow Washington to impose sanctions on any individual or group with links to the Muslim Brotherhood.

Experts say targeting the group’s financial networks overseas could undermine its activities in the Middle East.

“If the U.S. could target the Muslim Brotherhood leadership by sanctioning powerful individuals who have been working with the organization in Middle East, Europe and North America, then the group would be harmed significantly,” said Shafeeq Mamdouh, a political commentator based in Alexandria, Egypt.

“This is a group that heavily relies on funding and donations from Muslim groups in and outside the Middle East. So their financial transactions abroad need to be disrupted,” he added.

What next

If the White House decides to label the Muslim Brotherhood a foreign terrorist organization, it must prove that the group engages in terrorist activity against the U.S. or its interests.

The secretary of state then would have to consult with the attorney general and the treasury secretary before making the designation official.

U.S. Congress would have seven days to review the designation, choosing either to block or allow it. (VOA)