A constitutional bench of the Supreme Court is going to hear the constitutionality of practices like Muslim polygamy and nikah halala. The constitutionality of these practices has already been challenged in the Supreme Court. On the petition filed by Shaira Bano, the Supreme Court declared the triple talaq as unconstitutional, the petition also raised issues like nikah halala and polygamy. But then the bench gave its verdict on only three divorces, saying that these two issues should be heard separately.
Now through four separate petitions, the marriage of Nikah Hallala and Muslim polygamy has been challenged. Out of these four petitions, two petitions were filed by two Muslim women named Sameena Begum and Nafisa Khan, who described themselves as suffering from these practices. Apart from this, two PILs have also been filed on the issue, whose petitioners are Ashwini Upadhyay and Moallim Mohsin from Hyderabad.
A constitutional bench is being constituted for joint hearing on these four petitions. The petitioners argue that practices like nikah halala and polygamy violate the fundamental rights given in the constitution. They say that the continuation of such practices is a direct violation of Article 14, 15, 21 and 44 of the Constitution. The Supreme Court has asked all the concerned ministries of the government to file replies in this matter.
Before discussing how right or wrong it is to have a judicial review of a practice like Nikah Halala, it would be right to understand this practice briefly. After divorce from a woman in the Muslim community, if a man wants to marry the same woman again, then it is necessary to do nikah halala before doing so. According to this, a divorced woman has to marry another man and have a physical relationship with him before marrying her husband again. Then only after getting divorced from this other man, that woman can marry her first husband. This practice is called nikah halala.
Some Serious Challenges Ahead
The petitioners, who challenged this practice, say that such a practice is as serious a crime as rape, because women are forced to have sexual relations with another man. Apart from this, the petitioners, while challenging polygamy, argue that this practice snatches the right of equality from Muslim women. Because in the Muslim community, only men are allowed to have polygamy, not women.
By the way, the figures present a different picture of this issue. According to them, the practice of polygamy is seen in more communities than the Muslim community in the country. However, it is very difficult to find solid data related to this, because the last time such data was collected in the 1961 census. According to these figures, the prevalence of polygamy in the Muslim community was only 5.7 percent. Whereas it was 15.25 percent among tribals, 7.9 percent in Buddhism, 6.7 percent in Jainism and 5.8 percent in Hinduism.
On the basis of these figures, many people also argue that no practice can be stopped by making a law. But it is also important to understand here that the laws are made not only to root out any malpractices, but also so that the path of justice can be opened for the people who are suffering from such misdeeds at their wish.
For example, even after the law has been made against the dowry system, this practice has not been completely eliminated. But with the enactment of the law, so much has happened that now any woman suffering from dowry can go to court and complain and demand punishment for the culprits.
The same is the case with polygamy. Apart from the Muslim community, women of all other communities have the right to go to court and demand action against them if their husband marries another against their wishes.
Polygamy is considered a crime in all religions except the Muslim community. In Christianity, it is a crime under ‘Christian Marriage Act-1872’, ‘Parsi Marriage Act-1963’ also considers polygamy as a crime and according to ‘Hindu Marriage Act-1955’ Hindu, Sikh, Buddhist and Jain religion people For polygamy is a crime.
If a person belonging to any of these communities or religions commits polygamy, then he can be punished for up to seven years under Section 494 of the Indian Penal Code. But this section does not apply to the people of Muslim community because polygamy is not a crime for Muslim men under ‘Muslim Personal Law’.
Article 25 of the Indian Constitution talks about freedom of religion. Due to this, a person of any religion is allowed to observe and celebrate their religious customs and traditions. But this article also does not allow to continue any tradition that affects the fundamental rights of another person.
The people who are demanding that those who declare polygamy unconstitutional, argue that this tradition is causing disharmony with Muslim women and is also violating their fundamental rights. This is also because even if a Muslim man does a second marriage against the will of his first wife, the current law cannot stop him from doing so. In such a situation, Muslim women are left with no legal option through which they can demand justice.
If you look at the decision of the Supreme Court which came a few months ago, through which the triple talaq has been annulled, then there is a clear indication that the court can declare nikah halala and polygamy also unconstitutional. Especially change
This is possible within the scope of the modern social environment and modern demand definition of equality.
Problem Or Politics?
But these are issues which remain in the discussion due to their political aspects more than legal aspects. If we look at polygamy itself, the practice of this practice is continuing in other communities besides the Muslim community, but its discussion is rarely. However, one reason for this is that women in other communities have legal provisions to avoid this.
Polygamy prevalent in the Muslim community is also opposed for political reasons. Many leaders associated with the Bharatiya Janata Party have made many statements that ‘Muslim men are producing forty children by four marriages and increasing their population rapidly’.
Such statements are used fiercely for communal polarization. At present, the process of communal polarization has become extremely fast. Sometimes the news of killing of a minority is coming out and sometimes there is news of glorification of the criminals who committed such murders and their expulsion. In such a situation, many people are naturally believing that by interfering in Muslim traditions, they are being completely marginalized.
But cases like nikah halala and polygamy should be judged not on political but only on judicial aspects. How fatal the consequences of political interference can be in such cases, its results have been seen in the country before.
In 1985, when the Supreme Court gave a historic verdict in the Shah Bano case, the right to give maintenance allowance to Muslim women was opposed by many Muslim organizations. Under pressure, the then Prime Minister Rajiv Gandhi passed the ‘Muslim Women (Protection of Rights on Divorce) Act-1986’ and the decision of the Supreme Court was overturned.
This decision gave the Hinduist organizations an opportunity to accuse Rajiv Gandhi of minority appeasement and condemn him fiercely. Distressed by this, Rajiv Gandhi set out on the path of majority appeasement. Rajiv Gandhi went on to make another mistake in the pursuit of avoiding one mistake, and every step of his step gave continuous strength to the communal forces. The result was that after a few years the Babri Masjid was demolished and the demolition was established as a major political force.
If we look at the current issue accepted by the Supreme Court for hearing only, the abolition of practices like nikah halala and polygamy seems more appropriate. If such practices are supported only for political reasons, then it will strengthen the same kind of communal forces as was done during the Shah Bano case. Therefore, those doing the politics of secularism need to take special care in this matter that they do not strengthen the hands of the communal forces by opposing such practices baselessly.