Published: Tue, March 27, 2018
Medical | By Bryan Strickland

SC to examine now validity of nikah halala, polygamy

SC to examine now validity of nikah halala, polygamy

To that objective, they have also issued a notice to the centre asking to make it clear on banning those practices for violating the constitutional provisions.The court passed the order on a batch of petitions challenging sec.2 of the Muslim Personal Law (Shariat) Application Act 1937, for recognizing and validating the practice of Nikah Halala, Nikah Mutah and Nikah Misyar and polygamy.

The petitions could pave way for enforcement of a Uniform Civil Code as one of the petitioners argued that Article 44 of the Constitution prescribes that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

It enforces that if a divorced woman is willing to get back with her ex-husband, she needs to marry again to somebody else, consummate her marriage and get divorced again. While then Chief Justice J S Khehar and justice S Abdul Nazeer held triple talaq to be part of fundamental right to religion of Muslims and said it was not unconstitutional, Justices Kurian Joseph, R F Nariman and U U Lalit said triple talaq violated the fundamental right of Muslim women as they are subjected to arbitrary irrevocable divorce through this practice. They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar should be declared illegal, as they are unconstitutional. The Court agreed to this and proceeded to refer the matter to a Constitution Bench, considering the importance of the matter.

The bench agreed with a plea that the validity of such practices is needed to be examined to check whether it is violating the right to equality or not. The court has issued a notice to the centre to make their stand on the matter clear.

These practices are coming under the radar because they are biased towards the man. Nikah Mutah or Nikah Misyar in actual terms is, in fact, a "pleasure marriage" which might be a verbal and temporary contract. At that time, SC chose to just focus on the Triple Talaq issue and pushed the other two aside to be dealt with later.

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Nikah Misyar is similar to Mutah in which the women have some rights, rather the rights are divided between two- wife has the rights to housing and maintenance money while the husband has right to home keeping and access. In PILs filed, the petitioner now sought a declaration where Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as unconstitutional.

Islamic law says that a Muslim man can divorce and remarry the same woman twice.

The top court also allowed Muslim Women Resistance Committee, Kolkata to file an application for impleadment as a party in the hearing.

Another plea filed by Delhi BJP leader Aswini Kumar Upadhyay takes up the issue of polygamy and nikah halala.

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