SC to set up fresh bench to hear pleas against polygamy, nikah halala

Advocate Ashwini Upadhyay, who has filed a plea in connection with the issue, mentioned the matter before a bench headed by Chief Justice of India D.Y. Chandrachud. The bench, also comprising Justices P.S. Narasimha and J.B. Pardiwala, said that it will consider the matter. The Chief Justice said, “At an appropriate stage, I will constitute a constitution bench”.

On August 30, a five-judge constitution bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh, and Sudhanshu Dhulia issued a notice on the petitions and made the National Human Rights Commission (NHRC), National Commission for Women (NCW) and the National Commission for Minorities (NCM) parties to the matter and sought their response in the matter.

However, two judges’, Justice Banerjee and Justice Gupta, have retired now, therefore there is a need to re-constitute the bench to hear a batch of pleas challenging the practices of polygamy and ‘nikah halala’.

Upadhyay’s plea said 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.

The plea sought a direction 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 recognise polygamy and nikah-halala.

“It is well-settled that common law has primacy over the personal laws. Hence, this court may declare that — Triple Talaq is cruelty under Section 498A of the IPC, 1860, Nikah-Halala is rape under Section 375 of the IPC,1860, and Polygamy is an offence under Section 494 of the IPC, 1860”, said Upadhyay’s plea.

In August 2017, the top court held that Muslim practice of ‘triple talaq’ is unconstitutional and struck it down by 3:2 majority. Polygamy allows a Muslim man to have four wives, and once a Muslim woman has been divorced, her husband is not permitted to take her back even if he had pronounced talaq under the 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 remarry her.