CJI DY Chandrachud to reconstitute Bench for 'nikah halala', polygamy pleas

Tribune News Service

New Delhi, November 24

Chief Justice of India DY Chandrachud on Thursday agreed to reconstitute a Constitution Bench to hear petitions seeking to declare Islamic practices of polygamy and ‘nikah halala’ unconstitutional.

A five-judge Constitution Bench of Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia had on August 30 issued notices to the Centre, National Human Rights Commission, National Commission for Women, National Commission for Minorities and others on nine petitions challenging these alleged discriminatory practices.

Advocate Ashwini Kumar Upadhyay, one of the petitioners, on Thursday told a Bench led by CJI Chandrachud that a new Bench was needed to be set up as two of the judges on the Constitution Bench—Justice Banerjee and Justice Gupta—had already retired. “We will form a Bench,” the CJI told Upadhyay.

Polygamy allows a Muslim man to have four wives while under ‘nikah halala’, a Muslim woman wanting to remarry her husband after divorce is forced to first marry another man, get the marriage consummated and then get divorced by him.

In 2017, the top court had declared the practice of instant triple talaq unconstitutional, saying it went against the basic tenets of the Quran. It had, however, said petitions against polygamy and ‘nikah halala’ would be dealt with separately.

Filed by some Muslim women, NGOs and Upadhyay, the petitions challenging the validity of polygamy and nikah halala were referred to a five-judge Constitution Bench in March 2018.

“Muslim law in so far it permits to have more than one wife at a time is against the very spirit of the Constitution as it discriminates on the basis of gender and there is no valid reason for continuing polygamy or bigamy in the national interest,” read a petition filed by a Lucknow-based NGO through advocate Vishnu Shankar Jain.

The petition challenged the validity of Section 2 of Muslim Personal Law (Shariat) Application Act, 1937, that recognised bigamy or polygamy among Muslims and sought reading down Section 494 of IPC, which allows such marriages among Muslims while making it punishable with seven-year jail term for members of other communities.

2 judges retired

Two of the judges on the five-judge Constitution Bench, which had issued notice to the Centre, NHRC, NCW and NCM on August 30, have since retired.

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