The Supreme Court today issued notice on a fresh plea by a woman seeking to declare the practices of polygamy and 'nikah halala' among Muslims as unconstitutional.
A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud sought response from the Centre and others on a plea of Rani alias Sabnam challenging the practice of polygamy and 'nikah halala' in the community. She and her three minor kids were allegedly thrown out of the matrimonial home after her husband had re-married.
The bench after hearing senior lawyer Shekhar Naphade and advocate Ashwini Kumar Upadhyay ordered tagging of her petition with a batch of pleas to be decided by a five-judge Constitution bench.
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 him after the consummation.
The apex court, on March 26, had referred to a five-judge constitution bench a batch of petitions challenging the constitutional validity of polygamy and 'nikah halala' among the Muslims.
Rani alias Sabnam, in her petition, referred to the sequence of events in her life and said she had married one Muzammil on February 8, 2010 as per the Shariayat rites and was blessed with two sons and a daughter.
She said her parents spent about Rs five lakh, including gold and silver ornaments as dowry, in her marriage. However, she was later harassed and forced out of the matrimonial home here after her husband re-married.
The woman, who is currently living with her children at the home of in-laws in Bulandshahr town of Uttar Pradesh after neighbours came forward in their support, has moved the top court for declaring these practices as unconstitutional.
"The instant petition raises an important issue of General Public Interest, that is prevalent practice of Polygamy including Nikah-Halala which is unconstitutional and even then the same is prevailing in our country. The said practices which certainly comes within the domain of personal law cannot be immune from judicial review under the constitution," it said.
The plea said that "extra-judicial talaq" amounted to cruelty and be made an offence under section 498A (subjecting a married woman to cruelty) of the IPC. It also sought that the practice of 'nikah halala' be considered as the offence of rape under the IPC.
Union ministries of Woman and Child Welfare, Law and Minority Affairs and National Commission for Woman have been made parties to the litigation.
The top court had on April 23 directed the Centre to respond to a separate plea seeking to declare the provisions of Muslim Personal Law (Shariat) validating the practice of polygamy and 'nikah halala' as unconstitutional. It had also ordered tagging of the petition, filed by Lucknow resident Naish Hasan on the same issue.
Hasan, in the petition, had said the pivotal issue that needed to be answered was whether under a secular Constitution, women, merely by virtue of their religious identity, can be relegated to a status significantly more vulnerable than their counterparts professing other faiths.
The apex court had on March 26 referred a batch of pleas challenging the practice of polygamy and others to the constitution bench.
The bench 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 triple talaq.
By a majority of 3:2, a five-judge constitution bench, on August 22 last year, had 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 Shariat.
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