The Constitution Bench of the Supreme Court in the case Ashwini Kumar Upadhyay versus Union of India observed and will start hearing the batch of petitions challenging the constitutional validity of the practice of polygamy and Nikah Halala allowed by Muslim personal law after the Dussehra holidays i.e., in the second week of October.
On Tuesday, eight petitions were listed challenging these practises before a 5-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia.
A notice is being issued by the bench to the National Human Rights Commission, National Commission for Women and the National Commission for Minorities and posted the petitions for hearing after the Dussehra holidays.
In March 2018, the cases were referred to the 5-judge bench by a 3-judge bench.
The present petitions have been filled by few Muslim women Naisah Hasan, Sabnam, Farjana, Sameena Begum and also advocates Ashwini Upadhyay and Mohsin Kathiri challenging the constitutional validity of the polygamy and nikah-halala.
Therefore, an organization named Muslim Women’s Resistance Committee has filed one of the petitions. Jamiat-Ulama-I-Hind has intervened in the case wherein supporting the practices.
It was observed that as per the Sharia or the Muslim personal law, men are allowed to practice polygamy that is, they can have more than one wife at the same time and up to a total of four.
However, ‘Nikah halala’ is a process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.
The petitioners in the plea demanded a ban on polygamy and Nikah-Halala saying it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights.
It was prayed by them that Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional and violative of Articles 14 (right to equality), Article 15 (discrimination on ground of religion) and Article 21 (right to life) of the Constitution, insofar as it seeks to recognize and validate the practice of polygamy and nikah-halala.
It was argued by Jamiat-Ulama-i-Hind that the Constitution does not touch upon the personal laws and therefore the SC cannot examine the question of constitutional validity of the practices.
Further, it was contended by them that the apex court and various High Courts have on earlier occasions refused to interfere with practices sanctioned by personal law an argument they advanced even in the triple talaq challenging matter too which the SC has already rejected.