Supreme Court plea moved for polygamy ban

New Delhi: Months after the Supreme Court declared triple talaq unconstitutional, a Muslim woman, who claims to be a victim of polygamy, moved the Supreme Court on Saturday seeking that provisions of Muslim Personal Law which validate practice of polygamy and nikah halala be declared unconstitutional.

Polygamy allows a man to have more than one wife while nikah halala is a practice where a Muslim woman divorced by her husband can remarry him only after she marries someone else, consummates the marriage and then gets a divorce.

Petitioner Sameena Begum of Delhi said that she was filing this petition not only on her own behalf but also to highlight the plight of thousands of Muslim women  suffering due to the draconian practices of polygamy and nikah halala that are rampant among Muslims.

She sought a court declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, that seeks to recognise and validate the practice of polygamy and nikah halala, is unconstitutional, discriminatory and violative of the right to equality and the right to life under Articles 14, 15 and 21 of the Constitution.

BJP leader Ashwini Kumar Upadhyaya had earlier filed a similar petition to quash polygamy and nikah halala provisions of the Muslim Personal Law.

Ms Begum said in her petition that she married Javed Anwar in 1999 and two sons were born out of the said wedlock. All the time when she was at her matrimonial home, she was tortured and asked to bring money from her parents.

After the repeated torture, she filed a dowry harassment complaint with the police, prompting her husband to send a letter giving her “Triple Talaq”.

Ms Begum said in her petition that in 2012 she got married, for the second time, to Riyazuddin from Bulandshahr, who was already married and had a wife. The petitioner claimed she got pregnant for the third time. Soon after birth of her third son, she was given “Triple Talaq” over phone. Since then, she is living alone with her three children.

The petitioner said that she had approached the apex court after herself suffering due to polygamy and nikah halala and to highlight the plight of other similarly-placed Muslim women.

She said the concept of polygamy came into the picture in the 7th Century to consider the issue of taking care of large number of widows and orphans who were left without husbands and father after the battle of Uhud near Medina between early Muslims and the inhabitants of Mecca in which Muslims suffered defeat and many Muslim men were killed.

She submitted that Muslim Marriage Dissolution Act, 1939 provides nine grounds for dissolution of marriage, including impotency, incapacity to fulfil martial obligations and cruelty but there is no eligibility pre-condition for marriage.

There is also no requirement for a Muslim husband to take permission from his first wife before contracting the second marriage. As a result, Muslim men are out of the purview of the offence of polygamy, she said.

Ms Begum’s petition said that though the personal law of Muslims permitted having as many as four wives, it could not be said that having more than one wife is a part of religion. Neither is it made obligatory by religion nor is it a matter of freedom of conscience.

“Any law in favour of monogamy does not interfere with right to profess, practice/propagate religion and does not involve violation of Article 25 of the Constitution,” she said.

Mr Upadhyaya submitted that a ban on polygamy and nikah halala is the need of the hour to secure basic rights and in the interest of public order, morality and health.

He said in his petition that the court has already expressed the view in its judgement on August 22 last year that triple talaq is not an integral part of religion and Article 25 merely protects religious faith, but not the practices, which  may  run  counter  to  public  order and fundamental rights.

He said polygamy is a practice that has been recognised as an evil similar to sati and has been banned under Section 494 of the IPC.

He said religious leaders and priests who propagate, support and authorise practices like polygamy and nikah halala are grossly misusing their position, influence and power to subject Muslim women to such gross practices which treats them as chattel.