The Supreme court on Thursday said it would appoint a fresh five Judge constitution bench at an “ appropriate stage” to consider petitions challenging the constitutional validity of Polygamy and “Nikah-Halala” among Muslims for being violative of fundamental rights.
Advocate Ashwini Upadhyay, who appealed the case, cited the case before a bench headed by the chief justice of India D.Y.Chandrachud.The bench, also included Judges P.S Narasimha and JB Pardiwala said they would investigate the matter. The chief justice said, “at an appropriate stage, I will constitute a constitution bench”.
Ashwini Upadhyay tried to hear his appeal against the practice of Nikah-Halal and polygamy as soon as possible. Besides upadhyay advocate Mohsin kathiri, Muslim women Naisah Hasan, Sabnam, Farjana and Sameena Begum also appealed to the supreme court to challenge the practices of Nikah-Halala and polygamy are unconstitutional.
On August 30 last year, panel of five judges, consisting of Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh, and Sudhanshu Dhulia, had made the National Human Rights Commission (NHRC), the National Commission on women’s affairs ( NCW) and the National commission Minority commission ( NCM) of the PIL party and solicited their responses.
Justice Banerjee and Justice Gupta retired on September 23 and October 6 respectively last year, necessitating the reinstatement of the bench to consider up to 8 petitions against the practice of Polygamy and “nikah halala”.
Upadhyay called for guidance in his PIL to make polygamy and “nikah halala” unconstitutional and illegal.
Although polygamy allows a Muslim man to have four wives “ Nikah-Halala” refers to the process whereby a Muslim woman who wishes to re-marry after a divorce first marries another person and divorce after consumption polygamy, on the other hand, is the practice of having more than one wife at a time.
On the other hand, polygamy is the practice of having more than one wife at a time.
The cases were referred from a 3- Judges constitutional court to a 5- Judge constitutional court in March 2018.
The petitioners argued that Nikah-Halal and polygamy made Muslim brides extremely insecure and vulnerable and violated their fundamental rights.
They demanded that section 2 of the Muslim personal law Application Act be declared unconstitutional and violative of Article 14 ( right to equality), Article 15( discrimination on grounds of religion, race, caste..), and Article 21( right to life) of the constitution, in the part where it aims to recognize and legitimize the practice of Nikah-Halala and polygamy.
“It is well known that customary law takes precedence over human rights. Accordingly, this Court may rule that- Triple talaq is an atrocity under IPC section 498 A, 1860, nikah halala is rape under IPC section 375, 1860, and polygamy is a crime under Article 494 of the IPC, 1860”. Said upadhy’s plea.
In August 2017, the supreme court ruled that the Muslim practice of “ triple talaq” was unconstitutional and rejected it by a majority of 3:2. Polygamy allows a Muslim man to have four wives, and if a Muslim woman is divorced, her husband may not take her back, even if she has pronounced talaq while under the influence of an intoxicant unless her wife undergoes nikah halala, which involves her marriage with another man. who subsequently divorce her to that her ex-husband can re- Marry her.
Written by -Anushka Yadav student of the ba.llb 2nd semester at Rnb global University Bikaner( Rajasthan )
