Fresh five-judge Supreme Court Bench to hear petitions against polygamy

Tribune News Service

Satya Prakash

New Delhi, January 20

The Supreme Court on Friday agreed to set up a fresh five-judge Constitution Bench to hear petitions seeking to declare Islamic practices of polygamy and ‘nikah halala’ unconstitutional.

“There are very important matters which are pending before a five-judge Bench. We will constitute one and bear this matter in mind,” a Bench led by Chief Justice of India DY Chandrachud told petitioner Ashwini Kumar Upadhyay.

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.

A five-judge Constitution Bench of Justice Indira Banerjee, Justice Hemant Gupta, Justice Surya Kant, Justice MM Sundresh and Justice Sudhanshu Dhulia had on August 30 last year 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.

On Friday, Upadhyay submitted that a new Bench was needed to be set up as two of the judges on the previous Constitution Bench – Justice Banerjee and Justice Gupta – had already retired.

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 Holy Quran. It had, however, said petitions against polygamy and ‘nikah halala’ would be dealt with separately.

“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 the IPC which allows such marriages among Muslims while making it punishable with seven-year jail term for members of other communities.

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