The Union government of India is set to oppose the practices of Nikah Halala and polygamy in the Supreme Court and is likely to put forth an argument similar to the one taken in the triple talaq issue.
According to a source, there is no change to be expected regarding the government’s stand. The issues of Halala and Polygamy were not looked into by the Supreme Court during the triple talaq case, but the government’s reply was ready. The same would be followed for this case too.
Nikah-Halala is the Islamic practice of remarriage. Where a woman cannot remarry her divorced husband until she marries another person and consummate the marriage and then divorce the new husband. Polygamy is the practice of having more than one wife. Earlier an India Today investigation found that Clerics were charging between Rs. 20,000 to Rs. 1 lakh 50 thousand for such Nikah-halala services.
In March this year, a three-judge bench of the Supreme Court comprising the CJI Deepak Misra and Justices AM Khanwilkar and Chandrachud was hearing a batch of petitions challenging the practices of Nikah-halal and Polygamy.
The petitions were filed in the Supreme Court opposing the practices of Nikah-Halala and polygamy. Petitioners include BJP leader Ashwini Upadhyay, Sameera Begum, Nafeesa Begum and Moullim Mohsin Bin Hussain Bin Adbad Al Kathiri.
Sameera Begum who runs an organization known as “Mission Talaq” is now facing rape and murder threats. She alleges that people have threated to burn her child alive if she does not withdraw the petition from the court.
Upadhyay in his petition prayed that the section 2 of the Muslim personal law (Shariat) Application Act be declared unconstitutional as it violates Articles 14, 15, and 21 of the Constitution. According to him, this particular section of the Muslim Personal Law seeks to validate the practice of polygamy and Nikah-halala.
Upadhyay sought a declaration that provisions of the Indian Penal Code are applicable on all Indian citizens. He wants ‘Triple-Talaq’ is a “cruelty” under section 498A of the IPC and “NiKah Halala” as ‘Rape’ under Section 375, and Polygamy is an offence under Section 494 of IPC.
The government is likely to maintain its stance in the Supreme Court when it re-opens. The argument from the government side is expected to urge the apex court to consider the issues of Triple talaq, Nikah-halala, and Polygamy in the context of gender justice and the over-riding principle of non-discrimination, dignity, and equality.
The government has previously expressed its stand on polygamy by citing examples of other Muslim countries reforming their polygamy and divorce laws. The affidavit filed by the government during the Shayara Bano case stated –
“It is extremely significant to note that a large number of Muslim countries or countries with an overwhelmingly large Muslim population where Islam is the state religion has undertaken reforms in this area and have regulated divorce law and polygamy”.
