Polygamy & Nikah Halala unconstitutional?

The All India Muslim Personal Law Board, which is a muslim personal law board, on Monday, sought impleadment in the challenge to the constitutionality of the practices of 'Nikah halala' and polygamy which is pending before The Supreme Court.

Points made by AIMPLB

• The board stated that since it is "working continuously for protecting the Muslim personal law which is part of the Islamic culture and tradition", it’s view point should be considered.
• Muslim personal law is inextricably woven with the religion of Islam and hence, it is a matter of freedom of conscience guaranteed under Article 25, 2 and 29 of the Constitution.
• The Board has pointed out that the issues whether polygamy is violative of Article 14 and 15 and whether it is tantamount to cruelty on the part of the husband to take more than one wife have already been considered by the apex court in Ahmedabad Women Action Group Judgment.
• "Personal laws do not derive their validity from whether they are passed by a legislature or other competent authority. The foundational source of these laws is their respective scriptural texts. The Muslim personal law is based on the Holy Quran and the Hadith of Prophet Mohammad and hence, does not fall within the purview of 'laws in force' for the course of Article 13. So its validity cannot be tested against Part III of the Constitution",(italics & bold) it is submitted.
• “Such an act would be going against the very integral practice of Islam, and would be disregarding the precise directions of Allah and also his Messenger which is nothing but a sin,”  the body has been quoted as saying.

What is impleadment?

It is to sue or prosecute or take proceeding against. Here the board sought impleadment in the following petition, which is pending before the Hon’ble Supreme Court.

Petition

The apex court, which on August 22, 2017, had banned the age-old practice of instant 'triple talaq' among Sunni Muslims. After this the SC on March 26, 2018, decided to refer to a larger bench on pleas challenging the constitutional validity of polygamy and 'nikah halala' among Muslims. One such plea is as follows-

A petition was filed before the Supreme Court, by a woman who had been illegally divorced by her husband, leaving her and their daughter without any means of living or financial support, seeking the declaration of polygamy and nikah-halala, practiced among Muslims, as illegal and unconstitutional. She filed a petition, urging the court to declare extra-judicial talaq as a cruelty under Section 498A of the Indian Penal Code (IPC), nikah-halala as an offence under Section 375 of the IPC, and polygamy as an offence under Section 494 of the IPC, 1860.According to a copy of the petition, accessed by ANI, the woman sought direction from the apex court to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 unconstitutional and void for violating Articles14, 15, 21 and 25 of the Constitution in so far as it seeks to validate the practice of polygamy. The victim also demanded the declaration that a Muslim wife, whose marriage has been terminated by a valid and legally recognised form of talaq, by her husband, may remarry her husband without 'halala' marriage with another man.

The plea assumes significance since the apex court had already referred to a five-judge constitution bench a batch of petitions challenging the constitutional validity of polygamy and 'nikah halala' among the Muslims.

What is nikah halala (aka tahleel marriage)?

‘Nikah’ means marriage and ‘halala’ means to make something halal, or permissible, thereafter, lawful. A practice in Islam where a woman, after being divorced thrice by the same husband, marries a different man, consummates the marriage, and is divorced again (or the husband dies), in order to marry the previous husband.Muta (conditional marriage), however, is considered to be a sin in Islam and the Sharia law does not permit it.

A Muslim jurist explained the concept clearly in Bahishti Zewar (a comprehensive handbook of Islamic beliefs and practices) that, “A person pronounces a revocable (raji) talaq. He then reconciles and resumes cohabitation. Two or four years later, under provocation he once again pronounces a revocable talaq. On recovering from provocation, he again resumes cohabitation. Now two talaqs are over. Hereafter, whenever he pronounces a talaq, it will be counted as the third talaq, which will dissolve the marriage forthwith, and should a remarriage be desired by the parties necessitate halala (inter-mediatory marriage).”

What is polygyny w.r.t. to Islam?

Polygyny is a form of polygamy under which a man can marry more one woman. Islam permits a muslim man to have four wives. “Four” (cardinal number) was a sacred number with the Hebrews, as well as with several other peoples.  Also, there are four cardinal attributes of Allah - Rabb (Lord), Rehman (Gracious), Raheem (Merciful) and Malik (Master). Whereas polyandry is not permitted in Islam. Allah says, “But if you feel you may not be able to deal justly between them, then marry only one.” (Holy Qur’an, 4:4).But in recent times men tend to misuse this liberty given to them by Islam which has led to many atrocities against the females.