The All India Muslim Personal Law Board (AIMPLB) moved the Supreme Court on Monday seeking impleadment in petitions challenging constitutional validity of polygamy and ‘nikah halala’ practised among Muslims.
The apex court has already dealt with the issue of these practices in its verdict of 1997 in which it had declined to entertain the petitions, it said.
“That personal laws do not derive their validity on the ground that they have been passed or made by a legislature or by other competent authority. The fundamental source of personal laws are their respective scriptural texts,” the AIMPLB plea said.
“The Mohammedan law is founded essentially on the holy Quran and the Hadith of the Prophet Mohammed and thus it can’t fall within purview of expression ‘laws in force’ as mentioned in Article 13 of the Constitution and hence its validity cannot be tested,” it said.
While polygamy allows a Muslim man to have four wives, ‘nikah halala’ stipulates that a Muslim woman, who wants to remarry her husband after divorce, has to first marry another man and get divorce from him after consummating the marriage.
The apex court had in 2018 decided to examine the constitutional validity of the two practices.
In March 2018 it issued notices to Union ministries of Law and Justice and Minority Affairs as well as the National Commission of Women (NCW) after taking note of the plea of Delhi-based woman Nafisa Khan challenging the practice of polygamy and ‘nikah halala’, and said that the matter will be taken up a five-judge Constitution bench.
The apex court had also considered the submission that an earlier five-judge constitution bench, in its 2017 verdict, had kept open these issues while quashing triple talaq.
By a majority of 3:2, a five-judge Constitution bench, on August 22, 2017 banned the 1,400 year-old practice of instant ‘triple talaq’ among Sunni Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law Shariat.
On March 14, 2018 Khan had moved the apex court saying that by virtue of Muslim Personal Law, section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to this community and no married Muslim woman has the avenue of filing a complaint against her husband for the offence of bigamy.
She sought that Dissolution of Muslim Marriages Act, 1939 be declared unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for women in India belonging to other religions.
The petitioner, who herself claimed to be a victim of such practices, had alleged that her husband and his family used to torture her for dowry and she was ousted from the matrimonial home twice.
She had also alleged that her husband had married another woman without taking any legal divorce from her and the police had refused to lodge FIR under section 494 and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC stating that polygamy was permitted under the Sharia.
The top court had also allowed Muslim Women Resistance Committee, Kolkata to file an application for impleadment as a party in the hearing.