Apex court turns lens on polygamy
SC Refers Other Forms Of Marriage Such As Nikah Halala To Constitution Bench
AmitAnand.Choudhary@timesgroup.com 27.03.2018
New Delhi: Seven months after declaring talaq-e-biddat – triple talaq— as invalid and unconstitutional, the Supreme Court on Monday decided to examine the validity of the practices of polygamy and certain forms of marriage in the Muslim community and referred the case to a Constitution bench to adjudicate.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud agreed with a plea that validity of the practices needed to be examined in the light of the right to equality and issued notice to the Centre, asking it to make its stand clear on banning them for being violative of constitutional provisions.
The court passed the order on a batch of petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 for recognising and validating the practice of nikah halala, nikah mutah and nikah misayar as well as polygamy.
These forms of Muslim marriages and polygamy had been challenged along with triple talaq before the SC, but the court had left it open for adjudication at a later stage.
Senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayya and lawyer Gopal Sankaranarayanan told the bench that the Constitution bench, which declared triple talaq invalid, had not looked into the other practices whose legality have also been questioned.
They contended that the prevalent practices of polygamy, nikah halala, nikah mutah and nikah misyar were unconstitutional and should be declared illegal.
In nikah halala, a Muslim woman, who wishes to restore her marriage after divorce, is required to marry someone else and consummate the marriage before divorcing him to remarry her previous husband.
Nikah mutah, which means pleasure marriage, is a temporary marriage contract in which the duration of the marriage and the mahr must be specified and agreed upon in advance. It is a private contract made in a verbal or written format and does not confer any right on the woman.
Nikah misyar is similar to mutah marriage under which the husband and wife renounce several marital rights such as living together, the wife’s rights to housing and maintenance money and the husband’s right to home-keeping and access.
Muslim Personal Law Board, in its affidavit in the triple talaq case, had termed such practices “undesirable”.
“Practices of nikah halala, nikah mutah, nikah misyar and polygamy interfere with the right conferred by Article 21 of the Constitution. By considering the woman an object of man’s desire, practices of nikah halala, nikah mutah, nikah misyar and polygamy cause gross affront to the dignity of women. A complete ban on these practices is the need of the hour as they render Muslim women extremely insecure and vulnerable and infringe on their fundamental rights,” the petition said.
SC Refers Other Forms Of Marriage Such As Nikah Halala To Constitution Bench
AmitAnand.Choudhary@timesgroup.com 27.03.2018
New Delhi: Seven months after declaring talaq-e-biddat – triple talaq— as invalid and unconstitutional, the Supreme Court on Monday decided to examine the validity of the practices of polygamy and certain forms of marriage in the Muslim community and referred the case to a Constitution bench to adjudicate.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud agreed with a plea that validity of the practices needed to be examined in the light of the right to equality and issued notice to the Centre, asking it to make its stand clear on banning them for being violative of constitutional provisions.
The court passed the order on a batch of petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 for recognising and validating the practice of nikah halala, nikah mutah and nikah misayar as well as polygamy.
These forms of Muslim marriages and polygamy had been challenged along with triple talaq before the SC, but the court had left it open for adjudication at a later stage.
Senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayya and lawyer Gopal Sankaranarayanan told the bench that the Constitution bench, which declared triple talaq invalid, had not looked into the other practices whose legality have also been questioned.
They contended that the prevalent practices of polygamy, nikah halala, nikah mutah and nikah misyar were unconstitutional and should be declared illegal.
In nikah halala, a Muslim woman, who wishes to restore her marriage after divorce, is required to marry someone else and consummate the marriage before divorcing him to remarry her previous husband.
Nikah mutah, which means pleasure marriage, is a temporary marriage contract in which the duration of the marriage and the mahr must be specified and agreed upon in advance. It is a private contract made in a verbal or written format and does not confer any right on the woman.
Nikah misyar is similar to mutah marriage under which the husband and wife renounce several marital rights such as living together, the wife’s rights to housing and maintenance money and the husband’s right to home-keeping and access.
Muslim Personal Law Board, in its affidavit in the triple talaq case, had termed such practices “undesirable”.
“Practices of nikah halala, nikah mutah, nikah misyar and polygamy interfere with the right conferred by Article 21 of the Constitution. By considering the woman an object of man’s desire, practices of nikah halala, nikah mutah, nikah misyar and polygamy cause gross affront to the dignity of women. A complete ban on these practices is the need of the hour as they render Muslim women extremely insecure and vulnerable and infringe on their fundamental rights,” the petition said.
