Published: Tue, March 27, 2018
Medical | By Vernon Walton

SC agrees to examine plea challenging polygamy, halala; seeks Centre's response

SC agrees to examine plea challenging polygamy, halala; seeks Centre's response

The Supreme Court has issued notices to the Centre and the Law Commission on petitions challenging the practices of polygamy and nikah halala among the Muslims.

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 advocates referred to the Supreme Court's triple talaq judgment and pointed out that the issues raised in the present petition were not addressed by the Constitution Bench in the triple talaq judgment.

Polygamy allows a Muslim man to have four wives, while Nikah Halala' deals with the process in which a Muslim woman has to marry another person and get divorced from him in order to allow the woman to marry her divorcee husband again.

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. 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 made a decision to limit the instant consideration, to "talaq-e-biddat" - triple talaq".

Nikah Misyar is similar to Mutah in which the women have some rights, rather the rights are divided between two- wife has the rights to housing and maintenance money while the husband has right to home keeping and access.

The top court also allowed Muslim Women Resistance Committee, Kolkata to file an application for impleadment as a party in the hearing.

Two of the petitioners - Sameena Begum and Nafisa Khan related their ordeal of how their husbands mistreated them and without obtaining divorce, married another woman.

With time, her husband tortured her to bring more dowry or else threatened to give her talaq.

She also alleged that her husband had married another woman without taking any legal divorce from her and the police had refused to lodge FIR under section 494 and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC stating that polygamy was permitted under the Sharia. She also had no recourse to filing a criminal case under IPC Section 494 that punishes a man for bigamy. They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar should be declared illegal, as they are unconstitutional.

These practices are coming under the radar because they are biased towards the man. Nikah Mutah or Nikah Misyar in actual terms is, in fact, a "pleasure marriage" which might be a verbal and temporary contract.

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