PIL filed in Supreme Court to declare “Nikah-Halala” as rape and polygamy as an offence

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Six months, before when the Supreme Court gave an unprecedented verdict on “Triple Talaq”, at the same point of time it decided to keep the practice of “Nikah-Halala” and polygamy aside which are recognized under Muslim personal law.

The issue has now surfaced again and these age-old practices have been challenged in the court. A Public Interest Litigation (PIL) was filed on Monday in the apex court by Ashwini Kumar Upadhyay—an advocate and Delhi BJP leader seeking to declare Islamic practice of polygamy and Nikah-halala not only invalid and appalling but also unconstitutional and violative of women’s fundamental rights.

Polygamy which in itself seems a morally corrupt practice has been declared valid under Muslim personal law which allows a man to keep more than one wife at the same time. What is more gross and disturbing is “Nikah-Halala”. Under this practice a divorced woman is required to marry another man, consummate the marriage and then get a divorce to in order to again marry her first husband under the Muslim personal law. No one need a theologian’s knowledge to gauge the validity of such acts and practices which are hineous by default. Petitioner advocated that both these practices violated fundamental rights guaranteed to Muslim women under Articles 14 (right to equality), 15 (right to non-discrimination) and 21 (right to life and liberty) of the Constitution. The petition further mentioned that state has the authority to supersede Muslim personal laws that are unconstitutional as it did in the case of human sacrifices and “Sati”.

“The laws dealing with marriage and succession are not a part of religion, law has to change with time, and international covenants and treaties could be referred to examine validity and reasonableness of a provision,” the petition read. It further sought a declaration “that the provisions of the IPC are applicable on all Indian citizens and Triple Talaq is a cruelty under section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC, ‘Nikah-Halala’ is rape under section 375 (rape) of the IPC, and polygamy is an offence under section 494 (marrying again during lifetime of husband or wife) of the IPC.” Muslim women cannot file an FIR under IPC to report against polygamy or the coercive Nikah-Halala and thus their constitutional rights are being clearly jeopardized.

The right to religion in no way guarantees the continuance of rituals and practices that are at odd with the liberal ideas, regressive and encourage prejudice. In his petition he has also urged the SC to declare Section 2 of Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional, discriminatory and violative of article 14,15 and 21 as far as polygamy and halala are concerned.

He further added that marriage, inheritance, divorce and succession do not come under religion but are more of a social practice and thus if an individual or an institution running Sharia courts tries to abjudicate on any such matter must be punished or appropriate action must be taken against them. No matter whatever practice or law or ritual it is, if in any sense it is suppressive and discriminatory it should be abolished at once.

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