Seven months after it declared instant triple talaq unconstitutional, the Supreme Court on Monday decided to look into the constitutional validity of the prevalent practices of polygamy, ‘nikah halala’, ‘nikah mutah’ and ‘nikah misyar’ in the Muslim community.
A Bench, headed by Chief Justice Dipak Misra, issued notices to the Centre and the Law Ministry on a bunch of petitions that have challenged the practices claiming they degrade women to a position inferior to that of men.
Constitution Bench
The Bench, also comprising Justices A.M. Khanwilkar and D.Y. Chandrachud, agreed to set up a five-judge Constitution Bench that will decide whether certain sections of the Muslim Personal Law (Shariat) Application Act go against the Constitution.
In its landmark verdict of August last, which had struck down instant triple talaq , the court had kept open the issue of polygamy, ‘nikah halala’, ‘nikah mutah’ and ‘nikah misyar.’
The petition said the Muslim Personal Law allows a man to marry up to four wives, which it said “treats women as men’s chattel, and reduces their status to an object of desire to be possessed by men.”
‘Offensive to equality’
Contending that the practice “offends the core ideal of equality of status,” the petition filed by Hyderabad-based social activist Moullim Mohsin Bin Hussain Bin Abdad Al Kathiri sought to quash polygamy. Another plea was made by a Delhi woman.
The woman has contended that the Muslim Personal Law rendered Section 494 of IPC (which prescribes punishment for marrying again during lifetime of husband or wife) as inapplicable.
Her plea also claimed that the Muslim wife does not have avenue to complain against her husband for the offence of bigamy.
Delhi BJP leader Aswini Kumar Upadhyay has also filed a plea seeking to ban polygamy and ‘nikah halala.’
‘Nikah halala’ is a Muslim law that requires a woman to marry another man and consummate the marriage and then get divorce from him in order to remarry her first husband.
“‘Nikah mutah’ and ‘nikah misyar’, literally means ‘pleasure marriage’ and is a verbal and temporary marriage contract that is practised among Muslims. In this the duration of marriage and the ‘mahr’ (gift which the bridegroom must make to the bride) is specified and agreed upon in advance,” the petition said.
“It is a private contract made in a verbal format. Preconditions for ‘nikah mutah’ are: The bride must not be married, she must be Muslim, she should be chaste and not addicted to fornication. She may not be a virgin, if her father is absent and cannot give consent. At the end of contract, marriage ends and women undergo iddah, a period of abstinence from marriage (intercourse),” the plea stated.
“Sunni Muslims and within Shia Islam, Zaidi Shias, Ismaili Shias and Dawoodi Bohras do not practise ‘nikah mutah.’ However, Sunni Muslims practise ‘nikah misyar’, which is similar to ‘nikah mutah’,” the plea which was argued by senior advocate Sajan Poovayya claimed.
The pleas sought a complete ban on polygamy, ‘nikah halala’, ‘nikah mutah’ and ‘nikah misyar’ claiming they render Muslim women “extremely insecure, vulnerable and infringe their fundamental rights.”
They said many Islamic scholars have already said that ‘nikah halala’, ‘nikah mutah’ and ‘nikah misyar’ are “forbidden and void in Islam.”
Published - March 26, 2018 01:35 pm IST
