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Ban on Polygamy, Nikah Halala: SC issues notice, next hearing after Dusshera holidays

Nine petitions challenging "Polygamy" and "Nikah Halala" were listed on Tuesday for hearing before a five-judge bench. Read More

Tuesday August 30, 2022 4:43 PM, ummid.com with inputs from IANS

New Delhi: A Supreme Court Constitution bench on Tuesday issued notice on a batch of pleas for striking down practice of "Polygamy" and "Nikah Halala" among a section in Muslims and scheduled the hearing on petitions after the Dusshera holidays.

Nine petitions challenging these practices were listed on Tuesday for hearing before a five-judge bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh and Sudhanshu Dhulia.

The petitions have been filed by Muslim women and advocate Ashwini Upadhyay has challenged the constitutional validity of "Polygamy" and "Nikah Halala". These cases were referred to the 5-judge bench by a 3-judge bench in March 2018.

Also Read | In 'hub of polygamy' with a population of 3.2 cr, over 5 lakh men have more than one wife

On Tuesday, the apex court issued notices to the Central government, National Commission for Women, National Commission for Minorities, Law Commission, etc., and scheduled the matter for hearing after Dussehra holidays.


Upadhyay's plea said the injury caused to the women as practice of "Triple Talaq", "Polygamy" and "Nikah Halala" is violative of Articles 14, 15 and 21 of the Constitution and injurious to public order, morality, and health.

The plea 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.

"It is well settled that Common Law has primacy over the Personal Laws. Hence, this Hon'ble Court may declare that -- "Triple Talaq" is cruelty under Section 498A of the IPC, 1860, "Nikah Halala" is rape under Section 375 of the IPC,1860, and "Polygamy" is an offence under Section 494 of the IPC,1860," said Upadhyay's plea.


In August 2017, the top court held that the practice of 'Triple Talaq' among a section of Muslims is unconstitutional and struck it down by 3:2 majority.

"Polygamy" allows a Muslim man to have four wives, yet majority of Muslims limit themselves to only one wife. Moreover, Islam has given this permission under strict rules and guidelines.

"Nikah Halala" - practiced by a section of Muslims, involves marriage of a divorced wife with another man, who subsequently divorces her so that her previous husband can remarry her. Such "Nikah" has no sanction in Islam and is against the set principles of Islam, according to all sects of Muslims.

Also Read | 151 men with 02 wives, 02 with 03 in Indian city of over 05 lakh Muslims, says latest survey

In 2017 verdict, the apex court had kept open the issue of "Polygamy" and "Nikah Halala", while quashing the practice of "Triple Talaq".

"It is submitted that religious leaders and priests like imams, maulvis, etc. who propagate, support and authorize practices like Triple Talaq, 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", said Upadhyay's plea.

Interestingly, the petition is silent on "Polygamy" which is widespread among people of other faith, including Hindus who are not allowed, as per their religion, to marry more than one women at any cost.

Moreover, "second wife" of Hindus does not enjoy the same right as the first one. This is in total contrast to Muslims who are mandated to give equal right to all wives and their children.


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