SC seeks Centre's response on plea challenging polygamy, some types of nikah

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The Supreme Court on Monday sought the Central government's response on a plea challenging the constitutional validity of the practice of polygamy, nikah halala (a requirement for a divorced couple to remarry), nikah mutah (temporary marriage in the Shias) and nikah misyar (short-term marriage among Sunnis) amongst the Muslim community.

A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud said the matter would be heard by the constitution bench, and directed that the matter be placed before the Chief Justice for setting up of an appropriate bench. In addition to the notice missed to the Central government and others, the court ordered that a copy of the petitions be served on a Central agency so that it can apprise the office of Attorney General.

The court also permitted advocate V.K.Biju appearing for Kolkata based Muslim Women Resistance Committee to move an impleadment application in the case. He was permitted to be associated with any of the four petitions before the court. Seeking response from the Central government and other respondents, the court did not include Law Commission as one of the respondents which was made a party by petitioner Nafisa Khan.

Issuing notice, the court noted the grounds stating that though these practices, which come within the domain of Muslim personal law, were not immune from judicial review under the Constitution. The court has been moved by Sameena Begum, Nafisa Khan, Moullium Mohsin and BJP leader and advocate Ashwini Kumar Upadhyay challenging the practice of polygamy, nikah halala, nikah mutah and nikah misyar on the grounds of these being violative of Article 14, Article 15 and Article 21 of the Constitution.

Article 14 guarantees equality before law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 21 guarantees protection of life and personal liberty. Telling the court that different religious communities are governed by different personal laws, Upadhyay has contended that "there could be no dispute, that different religious communities can have different laws, but personal laws must meet the test of constitutional validity and constitutional morality, in as much as, they cannot be violative of Articles 14, 15,21 of the Constitution".

Pointing to the "appalling" affect of polygamy and nikah halala and other practices on the Muslim women, senior counsel Mohan Parasaran told the court that the 2017 judgement which had held instant triple talaq as unconstitutional had left these two issues open and did not address them. The five judge constitution bench headed by Chief Justice J.S.Khehar (since retired) by 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' - triple talaq."

"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," it has said. A Muslim husband is allowed to have more than one wife. Under nikah halala, if a Muslim woman after being divorced by her husband three times at different instances wants to go back to him, then she has to marry another person and then divorce the second husband to get re-married to her first husband.

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