SC To Examine Validity of Polygamy And Some Nikah Forms

It must be stated at the very outset that seven months after declaring the centuries-old practice of instant triple talaq or talaq-e-biddat in which Muslim men divorced their wives by uttering talaq three times in quick succession, the Supreme Court on March 26, 2018 decided to also examine the constitutional validity of much despised and anti-women reprehensible practices in the form of various types of marriages like polygamy, nikah halala, nikah misyar and nikah mutah among Muslims and referred the case to a Constitution Bench to adjudication. It is a national shame that Jawaharlal Nehru who was the first Prime Minister of India very rightly decided to ban polygamy and polyandry among Hindus even though Hindus had a tradition to marry many women with no maximum cap imposed like Lord Krishna had 16,108 wives, Dashrath who was father of Lord Ram had 3 wives, Shivaji who created Maratha empire had too many wives and his chief queen was Sai Bai Nimbalkar except for very few exceptions like Lord Ram and similarly women too could marry as many husbands as they liked like Draupadi had five husbands famously known as Pandavas but no Prime Minister from Nehru to Modi could ever dare to ban polygamy among Muslims even though polyandry is not permitted among Muslims. One can understand that Nehru didn't want to hurt Muslims as they were reeling from the fresh wounds of partition but what about all other Prime Ministers who followed him till now including incumbent Narendra Modi who keeps taking potshots at Nehru but even after completing 4 years in office has never summoned the courage to ban polygamy among Muslims which is a derogatory malpractice which considerably reduces the pride of women and status! The affected Muslim women had no option but to approach court as last refuge as all governments from 1947 to 2018 have failed them miserably by setting aside all deplorable practices which downgraded women and subjected them to all forms of repression!

Nor has Modi summoned the courage to create a high court bench in any of the 75 districts of UP even though Nehru created a bench in Lucknow way back in 1948 on July 1 but even after 70 years no PM could summon the courage to create even a single bench in UP which was slammed by former UN Secretary General Ban ki moon as 'rape and crime capital' of India! UP has maximum population more than 22 crore, maximum MPs, maximum MLAs, maximum villages more than 1 lakh, maximum towns, maximum PM including Modi, maximum pendency of cases more than 10 lakh whereas other states have less than 2 lakh yet states like Maharashtra, Assam have 4 high court benches, Karnataka has 3 high court benches, Madhya Pradesh has 2 but UP has least only one very near to Allahabad at Lucknow created way back in 1948! Not just this West UP owes more than half of pending cases of UP still has no high court bench even though lawyers of 26 districts went on strike for 6 months for 3 times as in 2001, for 3 to 4 months as in 2014-15, for one month as in 2010 and every Saturday since May 1981 till now still no bench and people have to travel whole night about 700-800 km all the way to Allahabad as there is no bench here! Allahabad High Court is biggest court in whole of Asia and also oldest which completed 150 years in 2016 yet it has just one bench and that too very near to Allahabad at Lucknow and nowhere else!

Why talk about just Modi? Even former PM Mrs Indira Gandhi could not dare summon the courage to create a high court bench in any of the 3 places where Justice Jaswant Singh Commission recommended the creation of high court bench in UP at Agra, Dehradun and Nainital even though on its recommendations benches were created at Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Jalpaiguri in West Bengal! To change what Nehru could not do is considered very difficult next to impossible!

This alone explains that status quo continues from 1948 to 2018 in UP and people of Uttarakhand had to agitate for separate state as the people there had to travel thousands of kilometers all the way to Allahabad to attend court hearings and suffer loss of money, time etc but no PM had the guts to do what Nehru couldn't! West UP still has no high court bench and incumbent PM Modi too watches like a mute spectator!

As if this was not enough, Article 370 of Constitution was not there originally in Constitution prepared by Dr BR Ambedkar as Ambedkar did not favour it but after his death it was inserted in Constitution not by Constitutional Amendment but in form of Presidential order which could be set aside by any later PM but again no PM summoned the courage to undo what Nehru did! It is this Article 370 that prevents the integration of Jammu and Kashmir with India and forbids Indians from other parts to purchase any land there or settle there yet no PM dared to set it aside including PM Modi whose party right from its inception has opposed it tooth and nail! Even former CJI JS Khehar had questioned special status of J&K when he asked that, 'How can one country have two flags, two Constitutions and two sets of laws?' but it is still kicking! Such is the charisma of Nehru!

Article 35A was a provision that had been inserted in the Constitution through a 'Presidential Order' in 1954 and it was not ratified by Parliament. There is an option with the Centre to ratify the provision by sending it to Parliament. But it has not been considered yet. It accords special privileges to Jammu and Kashmir citizens and empowers state legislature to frame separate law for state.

More to the point, Article 35A of the Constitution that envisages special rights and privileges to the 'permanent residents' of Jammu and Kashmir is a provision that came into force in 1954 when the President used the powers vested on him by Article 370 to introduce the 'Constitution (Application to Jammu and Kashmir) Order 1954'. It must be pointed out here that under the said provision, which appears in the Constitution as an 'appendix' and not as an amendment to Article 35, all citizens from other parts of the nation are prohibited from acquiring immovable property in the state of J&K, taking up employment under the state government, availing of the state sponsored scholarship schemes or settling permanently anywhere in the state. Certain provisions deny property rights to a woman who marries a person not a 'citizens' of Kashmir. According to the law, women lose rights over property and this also applies to her children. The woman also loses employment opportunities in the state. Is this not worst blatant discrimination but no PM till now including PM Modi has dared to even touch what Nehru brought in! Such is the charisma of Nehru!

Dr BR Ambedkar wanted reservations only for 10 years for Scheduled Castes and Scheduled Tribes and Other Backward Classes but again Nehru wanted it to continue much longer! Once again, no PM including Narendra Modi has the courage to abolish reservations even after more than 70 years of independence! Such is the charisma of Nehru that no one can dare to change what he did even after more than 54 years of his death!

Anyway, coming back to the main core issue, a Bench of CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud agreed with a plea that validity of the practices needed to be examined in the light of the right to equality and issued notice to the Centre, asking it to make its stand clear on banning them for being violative of constitutional provisions. The court passed the order on a batch of petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 for recognizing and validating the practice of Nikah Halala, Nikah Mutah and Nikah Misayar as well as polygamy. These forms of Muslim marriages and polygamy had been challenged along with triple talaq before the Supreme Court but the court had left it open for adjudication at a later stage.

Senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayya and lawyer Gopal Sankaranarayanan told the Bench that the Constitution Bench which declared triple talaq invalid had not looked into the other practices whose legality have also been questioned. They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar were unconstitutional and should be declared illegal. It is imperative that we understand these practices one by one.

Polygamy means a husband marrying more than one women. In Nikah Halala, a Muslim woman who wishes to restore her marriage after divorce is required to first marry someone else and consummate the marriage before divorcing him to remarry her previous husband. Nikah Mutah prevalent among Shias means 'pleasure marriage' which is a temporary marriage contract in which the duration of the marriage and the mahr must be specified and agreed upon in advance. It is a private contract made in a verbal or written format does not confer any right on the woman. Man have the right in this form of marriage to many any number of woman for a brief period!

Now coming to Nikah Misyar. It is similar to Mutah marriage under which the husband and wife renounce several marital rights such as living together, the wife's rights to housing and maintenance money and the husband's right to home-keeping and access. Muslim Personal Law Board, in its affidavit in the triple talaq had termed such practices as 'undesirable'. While declaring triple talaq invalid in August 2017, a five-Judge Constitution Bench had thus explained while it kept the focus on the triple talaq issue: 'Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case, at the very outset, it was decided to limit the instant consideration to triple talaq. Other questions raised in the connected writ petitions, such as, polygamy and 'halala' (and other allied matters) would be dealt with separately.'

After going through the judgment, the Bench agreed with the submission of the petitioners and asked them to serve copy of the petitions to the Centre so that it could take a stand on the issue when the case would be taken up for consideration. The Bench minced no words in making it absolutely clear that, 'Practices of Nikah Halala, Nikah Mutah, Nikah Misyar and polygamy interfere with the right conferred by Article 21 of the Constitution. By considering the woman an object of man's desire, practices of Nikah Halala, Nikah Mutah, Mikah Misyar and polygamy cause gross affront to the dignity of women.'

The petition said the Muslim Personal Law allows a man to marry up to four wives, which it said 'treats women as men's chattel, and reduces their status to an object of desire to be possessed by men.' Not just this, men and women from other religions are tempted to convert into Muslim so that they can marry more than one spouse which only serves to vitiate the peaceful harmony among different religions and also population increases more rapidly as we are seeing also! India is on verge of overtaking China in next few years still can we allow such retrograde and discriminatory practices like polygamy and others to continue unabated and flourish in our society?

Can it be ignored that many Islamic scholars have already said that 'nikah halala', 'nikah mutah' and nikah misyar' are forbidden and void in Islam and it's nothing but religiously sanctioned rape'? Can it be ignored that Prophet Mohammad too favoured monogamy and allowed polygamy only in exceptional cases when it is necessary to support a women but the ground reality is different with polygamy being practiced most rampantly especially in the lower sections of society which only serves to make them more poorer whereas most of the affluent Muslims too now practise monogamy as they understand that sustaining many women and many children is an unnecessary drain on their pocket? Why then should polygamy not be banned completely? Can it be ignored what the petitioners submitted that giving recognition to talaq-e-bidat, nikah halala and polygamy as a valid form of divorce interferes with the Muslim women's right to profess and practice her religion under Article 25? Can it be ignored what the petitioners submitted that it also treated women unequal as it is illegal for a married Muslim female to marry a second time during subsistence of first marriage and such second marriage is void?

Moreover, the petitioners argued that if a man agreed not to marry a second time as per nikahnama, his second marriage is at best a breach of contract but not a ground to make the second marriage void. To this extent, the petitioners even challenged the validity of Dissolution of Muslim Marriages Act 1939 as unconstitutional. Two of the petitioners – Sameena Begum and Nafisa Khan related their ordeal of how their husbands mistreated them and without obtaining divorce, married another woman. Sameena got married in 1999 and had two sons from the wedlock. With time, her husband tortured her to bring more dowry or else threatened to give her talaq. She field a complaint of dowry harassment under IPC Section 498A.

Nafisa too similarly underwent torture and harassment in marriage and was left remediless under law when her husband married another woman without giving her divorce. She also had no recourse to filing a criminal case under IPC Section 494 that punishes a man for bigamy. Left completely remediless due to polygamy and triple talaq getting the legal cover under Muslim personal law, both petitioners demanded polygamy, nikah halala and triple talaq as offences under Sections 498A (dowry harassment), 375 (rape) and 494 (bigamy) of IPC. The other two petitions filed by BJPleader and lawyer Ashwini Upadhyay and lawyer Moulim Mohsin Bin Hussein attacked the validity of the nikah halala and polygamy on the same logic as applied by the Supreme Court in Shayyara Bano, since the practices treat Muslim women unfairly as chattels and unequal.

Poovaiya who argued for the petitioner Hussein also urged the court to consider the validity of nikah misiyar and nikah muta which allow Muslim men to have a one-night stand marriage or a marriage of pleasure. Can on earth there be anything more shameful than this? Yet it is continuing till now because as Nehru didn't scrap it, no PM including present PM Modi bothered to ever scrap it! Nikah Misiyar is prevalent among Sunni Muslims and Nikah Mutah among Shia Muslims!

To conclude, all such retrograde, regressive and reprehensible malpractices which downgrade women and make her a soft target for being abused, tortured and victimised must be abolished immediately but what a tragedy that no PM from Nehru to Modi could summon the courage to abolish it even though Nehru abolished polygamy and polyandry among Hindus for which Hindus must really adore him always for this was the biggest favour done by Nehru on Hindus which most do also as this has ensured the population of Hindus under check which is necessary for the rapid growth of our nation! But why no similar landmark step taken in case of Muslims also? Why just because Nehru didn't do this, no other PM dared do this? Nehru had the compulsion of 'fresh partition wounds suffered by Muslims' and he didn't want to further anger them but what about all other PM who followed him right from Lal Bahadur Shastri to Narendra Modi who time and again ridicule the legacy of Nehru? Why can't he change it? For how long this status quo? Another 100 years?

No doubt, the petitions could pave the way for enforcement of a Uniform Civil Code as one of the petitioners argued that Article 44 of the Constitution prescribes that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India! But it would still be too early to jump the gun and draw any hasty conclusion! Let's wait and watch what the Supreme Court decides in this case after examining it from all angles! I am pretty confident that Supreme Court will not disappoint Muslim women and once again just like in Shayyara Bano case will rise up to their high expectations of being the 'last bastion of hope and optimism'!