A petition has been filed in the Supreme Court under article 32 to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, Unconstitutional and Violative of Articles 14, 15 and 21 of the Constitution insofar as it seeks to recognize and validate the practice of Polygamy and Nikah-Halala.
The plea has been filed by one Advocate Ashwini Kumar Updahyaya of Ghaziabad claiming that the injury caused to the women as practice of Triple-Talaq, Polygamy and Nikah-Halala is violative of Articles 14, 15 and 21 of the Constitution and injurious to public order, morality and health. However, police does not lodge FIR under Sections 498A, 494 and 375 of the IPC respectively for these offences.
The petitioner has alleged that once a Muslim woman has been divorced, her husband is not permitted to take her back even if he had pronounced Talaq under influence of any intoxicant, unless his wife undergoes Nikah-Halala, which involves her marriage with another man, who subsequently divorces her so that her previous husband can re-marry her. “This unfortunate practice was highlighted by the media in the case of Nagma Bibi of Orissa, whose husband divorced her in the spur of the moment in a drunken state and wanted her back the next morning, when he realized that he had committed a mistake. Unfortunately, she was prevented by her community’s religious leaders, who forcibly sent her with three children to her father’s house suggesting that she will have to undergo Nikah-Halala before she can re-unite with her husband.” The plea stated.
The petitioner has referred to the Sarla Mudgal case alleging that bigamous marriage has been made punishable amongst Christians by the Christian Marriage Act, 1872, (No. XV of 1872), amongst Parsis by the Parsi Marriage Act, 1936 (No. III of 1936), and amongst Hindus, Buddhists, Sikhs and Jains by the Hindu Marriage Act, 1955 (No. XXV of 1955). However, Dissolution of Muslim Marriages Act, 1939 does not secure for Muslim women the protection from bigamy, which has been statutorily secured for women belonging to other religion. “The citizens, who follow religion other than Islam traditionally, practiced polygamy, but the same was prohibited not only because laws dealing with marriage are not a part of religion, but also because the law has to change with time and ensure a life of dignity unmarred by discrimination on the basis of gender.” Petition alleged
“The Constitution has primacy over the Common Law and Common Law has primacy over Personal Laws. So, India doesn’t need another personal law on talaq, polygamy and Halala,” the petition stated
The petitioner has further submitted that the executive has not taken any steps to prohibit triple talaq, polygamy and nikah-halala and declare them an offence under the Indian Penal Code even as the Supreme Court had on 22 August 2017 declared triple talaq unconstitutional while also observing that practices permitted or not prohibited by religion do not become a religious practice or a positive tenet of the religion and a sinful practice does not acquire the sanction of religion merely because it is practiced since long time.
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Thus the petitioner has sought directions for the Central Government to take appropriate action against the person, institution and organizations, running Sharia Courts to decide the cases related to Marriage, Divorce, Inheritance and Succession or other similar matters. It has further sought to declare that provisions of the IPC are applicable on all Indian Citizens and Triple-Talaq is a cruelty under Section 498A of the IPC, Nikah-Halala is Rape under Section 375 of the IPC, and Polygamy is an offence under Section 494 of the IPC;
The petitioner in addition to it has also prayed before the Court to direct the Law Commission of India to consider the Civil Laws of developed countries, particularly the Civil Law of France, Japan and China and publish its Report in spirit of Article 44 of the Constitution within three months