Islamic law says that a Muslim man can divorce and remarry the same woman twice.
New Delhi: Within months of the Supreme Court striking down triple talaq as unconstitutional, a Constitution Bench of the top court will look into the legal and constitutional validity of the prevalent practices of polygamy and nikah halala among Muslims.
A three-judge bench, headed by Chief Justice Dipak Misra, while issuing a notice to the Centre on four petitions filed by Sameena Begum of Delhi, BJP leader and social activist Ashiwini Kumar Upadhyaya and two others, referred the matter for adjudication by a Constitution Bench.
Polygamy allows a Muslim man to have four wives. Under Islamic jurisprudence, men are permitted, under specific circumstances, to marry up to four wives at one time. Islamic law states that a man can marry more than one woman if he has the financial resources to maintain all wives and their children and behave with complete justice and no favouritism to all. It is not mandatory, but permissible for those who can afford it. Polyandry, the practice where a woman can have more than one husband, is not permissible.
Islamic law says that a Muslim man can divorce and remarry the same woman twice. However, if the marriage is dissolved for the third time, it will only be “halal” for both to remarry after the wife first marries another man, consummates the marriage and if the other man willingly divorces her or dies. If any step of this process is not observed, the halala is not valid.
While agreeing to take up the matter, the bench, which also comprised Justices A.M. Kanwilkar and D.Y. Chandrachud, considered the submission that an earlier five-judge constitution bench, in its August 22, 2017 verdict, had kept open the issue of polygamy and nikah-halala while quashing triple talaq. The petitioners sought a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, is unconstitutional and violative of Articles 14, 15 and 21 of the Constitution insofar as it seeks to recognise and validate the practice of polygamy and nikah-halala.
The bench sought the response of the Centre on the petitions, which also questioned the validity of nikah-mutah and nikha-misyar (temporary marriage for a few days), and left it open to the All India Muslim Personal Law Board and others to become a party in the matter.
The court took note of the submissions of senior counsel appearing for petitioners that last year the Constitution Bench had left the issues of polygamy and nikah-halala to be decided later and confined its hearing only to triple talaq.
It was submitted that Muslim women are being discriminated against due to the practice of polygamy and nikah-halala and the court should go into the legality these provisions of the Muslim personal law to determine whether it infringes on their fundamental right to equality.
Petitioner Ms Begum and two other victims of polygamy said that they were filing the petition to highlight the plight of thousands of Muslim women across the country suffering due to the draconian practice.
They submitted that the Dissolution of Muslim Marriages Act, 1939, provides nine grounds for dissolution of marriage, including impotency, incapacity to fulfil martial obligations and cruelty.
There is also no requirement for a Muslim husband to take permission from his first wife before contracting second marriage, keeping them out of the purview of offence of polygamy as defined under penal provisions, they said.
Mr Upadhyaya submitted that a ban on polygamy and nikah-halala has been the need of the hour to secure the basic rights of women. This court has already expressed the view that triple talaq is not an integral part of religion and Article 25 of the Constitution merely protects religious faith, but not the practices, which may run counter to public order, morality and health 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. Unfortunately, even in the 21st century, it continues to vex Muslim women notwithstanding that such practice poses extremely serious health, social, economic, moral and emotional injury.
A survey carried out by the government in 1974 put the polygamy figure at 5.6 per cent among Muslims, and 5.8 per cent for upper-caste Hindus.
Research by Mallika B. Mistry of the Gokhale Institute of Politics and Economics in Pune in 1993, later recorded by John Dayal, also concluded that “there is no evidence that the percentage of polygamous marriage (among Muslims) is larger than for Hindus”.
According to the third National Family Health Survey carried out in 2006, 2 per cent of women reported that their husbands had more than one wife. The survey indicated that more than the religion of the parties involved, the determinant reasons were not having a child or a male child from the first wife, education and the age of first wife. It found that a polygamous Hindu was likely to have 1.77 wives, a polygamous Muslim 2.55, Christian 2.35, and Buddhist 3.41.