Plea in SC to declare 'nikah-halala' among Muslims unconstitutional

Months after the Supreme Court struck down 'triple talaq', a petition filed in the apex court today sought that the practices of polygamy and 'nikah-halala' among Muslims be declared "unconstitutional" and violative of the fundamental rights of women.
Nikah-halala is a practice intended to curb incidence of divorce under which a man cannot remarry his former wife without her having to go through the process of marrying someone else, consummating it, getting divorced and observing a separation period called Iddat before coming back to him.
The fresh petition alleged that the practices of polygamy and 'nikah-halala' violate the basic fundamental rights of Muslim women granted under the Constitution.

"Practice of polygamy and nikah-halala is injurious to basic rights guaranteed under Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 21 (right to life and personal liberty) and public order, morality and health. Hence, can be superseded by the state just as it prohibited human sacrifice or the practice of 'Sati'," the petition filed by Delhi BJP leader and advocate Ashwini Kumar Upadhyay said.
The petition claimed that the ban on polygamy and 'nikah-halala' was the need of the hour to secure basic rights and was in the interest of public order, morality and health.

The harm caused to the women due to the practices of triple talaq, polygamy and 'nikah-halala' is violative of Articles 14, 15 and 21 of the Constitution and is injurious to public order, morality and health, the petition said.

"However, police does not lodge FIR under the sections of Indian Penal Code (IPC)," it said.
It further sought a declaration "that the provisions of the IPC are applicable on all Indian citizens and triple talaq is a cruelty under section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC, 'nikah-halala' is rape under section 375 (rape) of the IPC, and polygamy is an offence under section 494 (marrying again during lifetime of husband or wife) of the IPC."

In a landmark verdict, the Supreme Court had on August 22 last year banned the 1,400 year-old practice of instant 'triple talaq' among Sunni Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law.
A five-judge Constitution bench, by a majority of 3:2, had said in a one line order, "In view of the different opinions recorded by a majority of 3:2, the practice of 'talaq-e-biddat' triple talaq is set aside."
With the apex court setting aside the practice of triple talaq last year, Sunni Muslims, among whom triple talaq was prevalent, are now left with two other modes of securing divorce - 'talaq hasan' and 'talaq ahsan'.

Under 'talaq ahsan', a Muslim man can divorce his spouse by pronouncing 'talaq' once every month in three consecutive months and this would be signified by menstruation cycles.
As per 'talaq hasan', divorce can be given by pronouncing talaq "during successive tuhrs (menstruation cycle)" with no intercourse during any of the three tuhrs.