New Constitution bench to hear pleas on polygamy, nikah halala among Muslims

The Supreme Court said on Thursday it will set up a fresh five-judge Constitution bench to hear the pleas challenging the constitutional validity of polygamy and 'nikah halala' among Muslims.

A bench comprising Chief Justice D Y Chandrachud and Justices Hima Kohli and J B Pardiwala was urged by lawyer Ashwini Upadhyay, who has filed a PIL on the issue, that a fresh five-judge bench was needed to be constituted as two judges of the previous bench -- Justice Indira Banerjee and Justice Hemant Gupta -- have demitted office.

"We will form a bench," the CJI responded.

On August 30, a five-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, M M Sundresh and Sudhanshu Dhulia had made the National Human Rights Commission (NHRC), National Commission for Women (NCW) and the National Commission for Minorities (NCM) parties to the PILs and sought their responses.

Later, Justice Banerjee and Justice Gupta retired on September 23 and October 16 this year respectively, giving rise to the need for re-constitution of the bench to hear as many as eight petitions against the practices of polygamy and 'nikah halala'.

Upadhyay, in his PIL, has sought a direction to declare polygamy and 'nikah halala' unconstitutional and illegal.

The apex court had in July 2018 considered the plea and referred the matter to a Constitution bench already tasked with hearing a batch of similar petitions.

The apex court had issued notice to the Centre on the petition filed by a woman named Farjana and tagged Upadhyay's plea to a batch of petitions to be heard by the Constitution bench.

The lawyer's petition sought declaring extrajudicial talaq a cruelty under Section 498A (husband or his relatives subjecting a woman to cruelty) of of the IPC. It claimed nikah halala is an offence under Section 375 (rape) of the IPC, and polygamy a crime under Section 494 (marrying again during the lifetime of husband or wife) of the IPC, 1860.

The apex court, which on August 22, 2017 banned the age-old practice of instant 'triple talaq' among Sunni Muslims, had on March 26, 2018, decided to refer to a larger bench a batch of pleas challenging the constitutional validity of polygamy and 'nikah halala'.

While polygamy allows a Muslim man to have four wives, 'nikah halala' is a process under which a divorced Muslim woman has to first marry another person, consummate it and get a divorce from the second husband, if the couple were to remarry after a compromise.

The pleas were referred to a larger bench by the Supreme Court after an earlier five-judge Constitution bench in its 2017 verdict kept open the issue of polygamy and 'nikah halala' while quashing the practice of 'triple talaq'.

It had also issued notices to the Law and Justice Ministry, the Minority Affairs Ministry and the National Commission of Women (NCW) at that time.

Some petitions have also challenged the practices of 'Nikah Mutah' and 'Nikah Misyar' -- two types of temporary marriages where duration of the relationship is specified and agreed upon in advance.

In one of the petitions, a woman named Sameena Begum has said by virtue of the Muslim Personal Law, Section 494 of the Indian Penal Code (punishment for marrying again during lifetime of husband or wife) was rendered inapplicable to Muslims and no married woman from the community has the avenue of filing a complaint against her husband for the offence of bigamy.

Another plea was filed by Rani alias Shabnam who alleged that she and her three minor children were thrown out of the matrimonial home after her husband remarried. She has sought  the practices of polygamy and 'nikah halala' to be declared unconstitutional.

A similar plea was filed by Delhi-based Nafisa Khan seeking almost the same reliefs.

She has sought declaring the Dissolution of Muslim Marriages Act, 1939 unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution in so far as it fails to secure for Indian Muslim women protection from bigamy which has been statutorily secured for women in India belonging to other religions.