SC to set-up a new constitution bench to hear pleas against Nikah-Halal, polygamy

New Delhi: The Supreme Court on Thursday said that it will set up a new 5-judge Constitution bench to hear pleas challenging the constitutional validity of polygamy and Nikah halala prevailing among the Muslims as Justice Indira Banerjee and Justice Hemant Gupta who were part of the earlier five-judge bench have since retired.

Justice Indira Banerjee and Justice Hemant Gupta had retired on September 23 and October 16, 2022.

Heading a bench, Chief Justice D.Y. Chandrachud after a mentioning by PIL petitioner advocate Ashwini Kumar Upadhyay said, “At an appropriate time I will constitute a constitution bench and have it decided.”

The five-judge bench of Justice Indira Banerjee, Justice Hemant Gupta, Justice Surya Kant, Justice M.M. Sundresh and Justice Sudhanshu Dhulia were earlier hearing the matter.

On August 30, 2022, the earlier five-judge bench had made the National Human Rights Commission (NHRC), National Commission for Women (NCW) and the National Commission for Minorities (NCM) as parties to the PILs and had sought their responses.

The top court had sought response from the Central government as well.

These petitions were referred to a five-judge Bench by a three-judge bench in March 2018.

One of the eight petitioners, advocate Ashwini Kumar Upadhyay has contended that the practice of triple talaq, polygami and nikah halala is violative of Articles 14, 15 and 21 of the constitution and injurious to public order, morality, and health.

The plea has 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.

Asserting that the common law has primacy over the personal laws, Upadhyay has urged  the court to declare the triple talaq as cruelty under Section 498A of the IPC, 1860, nikah halala as rape under Section 375 of the IPC,1860, and Polygamy as an offence under Section 494 of the IPC,1860.”

In August 2017, the top court held that the Muslim practice of instant ‘triple talaq’ is unconstitutional and  struck it down by 3:2 majority.

However, in the 2017 verdict, the top court had kept open the issue of polygamy and ‘nikah halala’, while holding that the practice of instant ‘triple talaq’ is unconstitutional.

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 and same should be consummated, who subsequently divorces her so that her previous husband can remarry her.

“It is submitted that religious leaders and priests like imams, maulvis, etc. who propagate, support and authorize practices like Talaq-E-Bidat, nikah halala and Polygamy are grossly misusing their position, influence and power to subject the Muslim women to such gross practices which treats them as chattel, thereby violating their basic rights enshrined in Articles 14, 15 and 21 of the Constitution”, says Upadhyay’s plea.