SC To Convene Constitutional Bench For Hearing Pleas Challenging Nikah-Halala

The Supreme Court stated on Thursday that it will form a Constitution Bench to hear the plea challenging the practice of bigamy and Nikah-Halala among Muslims “at an appropriate time.”

Advocate Ashwini Upadhyay mentioned the plea before a Bench of Chief Justice of India (CJI) DY Chandrachud, Justices PS Narasimha and JB Pardiwala.

“At the appropriate time, I will convene a Constitution Bench and have it decided,” the CJI stated.

According to Muslim personal law, the practice of Nikah-Halal requires a divorced woman must marry someone else, consummate the marriage, and then divorce in order to marry her first spouse again. Polygamy, on the other hand, is the practice of having several wives or husbands at the same time.

In March 2018, a 3-judge court referred the cases to a 5-judge Constitution bench. A few Muslim women, Naisah Hasan, Sabnam, Farjana, and Sameena Begum, as well as solicitors Ashwini Upadhyay and Mohsin Kathiri, filed pleas challenging the constitutional validity of Nikah-Halala and polygamy.

The petition stated that the practice of bigamy cannot be permitted for one religious group alone while being prohibited for those of other religions. Thus, it has sought a declaration that the practice is unlawful, oppressive towards women, and opposed to equality.

They requested that Section 2 of the Muslim Personal Law (Shariat) Application Act be declared unconstitutional and in violation of Articles 14 (equality), 15 (discrimination on the basis of religion), and 21 (right to life) of the Constitution, insofar as it seeks to recognize and validate the practice of Nikah Halala and polygamy.

“Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine,” states Section 494 of the IPC.

The petitioners request that the words ‘in any case when such marriage is invalid by reason of its taking place’ in Section 494 of the IPC be struck down.

The main argument of the petition is that the state cannot design criminal law in such a way that it causes discrimination by making the same act which is punishable for some, “enjoyable” for others.

“Penal action cannot be differentiated based on religious practice, and penal law must be made uniformly applicable without regard to personal law applicable to the offender,” the plea added.

The petitioners claim that Section 494 discriminates “only on the basis of religion,” which is a violation of Articles 14 and 15(1) of the Indian Constitution.