SC agrees to hear fresh plea against nikah halala, polygamy

The Supreme Court today agreed to hear another fresh petition challenging the prevalent practices of nikah halala and polygamy among Muslims saying it is violative of fundamental rights guaranteed under the Constitution.

A bench of Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud issued notice on a petition filed by Nazia Elahi Khan, chairman of a Kolkata-based group called Muslim Womens Resistance Committee.

The bench tagged the writ petition with the pending matters on the issues.

Advocate V K Biju, appearing for the group, sought direction for declaring the practices of nikah halala and polygamy under Muslim personal laws as illegal and unconstitutional for being violative of articles 14, 15, 21 and 25 of the Constitution.

He said that Section 2 of the Muslim Personal Law (Shariat) Application Act, seeks to recognise and validate nikah halala and polygamy, which is void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under the Constitution.

The petition said that the Muslim personal laws of India permit the practice of nikah halala and polygamy. While polygamy allows a Muslim man to have four wives, nikah halala deals with the process in which a Muslim woman, who wants to re-marry her husband after divorce, has to first marry another person and get a divorce from the second person after the consummation.

"Therefore, this is directly degrading women to get position inferior to that of men and it treats women as a property and it can be used as per their will," it said.

The petition further added that "the discrimination between men and women as regards the permission to have multiple spouses grossly offence the right to dignity of women which is integral part of the life and personal liberty".

The apex court had on July 2, said that it would consider setting up of a five-judge constitution bench to examine the validity of the practices of polygamy and 'nikah halala'.

The apex court, which on August 22 last year had banned the age-old practice of instant 'triple talaq' among Sunni Muslims, had on March 26 decided to refer to a larger bench a batch of pleas challenging the constitutional validity of polygamy and nikah halala among Muslims.

The top court had said that the petitions challenging the two prevalent practices will be listed for hearing before the constitution bench after the Centre files its response.

The Centre recently made it clear that it would oppose in the Supreme Court the practice of nikah halala when the top court would examine its legal validity in the coming days.

The court's observation on July 2 had come on a plea of Delhi-based woman Sameena Begum, seeking an urgent hearing of her petition, alleging she has been threatened by her in-laws to either withdraw the case from the apex court or get thrown out of the matrimonial home.

The top court on March 26 had referred to a five-judge bench the petitions challenging the constitutional validity of polygamy and nikah halala.

It had considered the submission that an earlier five-judge constitution bench, in its 2017 verdict, had kept open the issue of polygamy and nikah halala, while quashing the practice of triple talaq.

It had then issued notices to ministries of Law and Justice and Minority Affairs as well as the National Commission of Women after taking note of the pleas on the issues of polygamy and nikah halala.

Some other petitions have also challenged the practices of nikah mutah and nikah misyar, both temporary marriages where duration of the relationship is specified and agreed upon in advance.