New Delhi | The Supreme Court has considered a fresh plea of a Muslim woman seeking to declare as unconstitutional the setting up of Sharia courts to decide marriage, divorce and other cases.
A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud asked petitioner Zikra to file an application to intervene as a party in a batch of pleas challenging the practice of polygamy and ‘nikah halala’ among Muslims.
The apex court, which had last year banned the age-old practice of instant ‘triple talaq’ among Sunni Muslims, had on March 26 decided to refer to a five-judge Constitution bench a batch of pleas challenging the constitutional validity of polygamy and ‘nikah halala’.
Polygamy allows a Muslim man to have four wives. Under ‘nikah halala’, a man cannot remarry his former wife unless she marries another man, consummates the marriage, gets a divorce and observes a period of separation period called ‘iddat’. Zikra, a 21-year-old resident of Uttar Pradesh and a mother of two, was represented by lawyer Ashwini Upadhyay.
She has demanded that triple talaq be declared “cruelty” under Section 498A and ‘nikah halala, nikah mutah and nikah-misyar’ rape under Section 375 of the Indian Penal Code. “Polygamy is an offence under Section 494 of the IPC,” her plea read. Muslim personal laws of India permit the practice of nikah halala and polygamy.
In her petition, Zikra narrated her experience of facing “triple talaq, nikah halala and other laws and practices”. The woman was divorced twice and forced to undergo ‘niakh halala’ to remarry her husband. “Declare that establishing a Sharia court to decide cases related to marriage, divorce, adoption, inheritance, succession and/or other similar matters is illegal and unconstitutional,” Zikra said in the plea.
The Muslim Personal Law, like all other personal laws, is subject to the rigours of the fundamental rights guaranteed under the Constitution and “any part of it contravening the fundamental rights would, to that extent, is void and ineffective”, she said. “Nikah halala, nikah mutah, nikah misyar and polygamy definitely run counter to public order, morality and health,” the plea read. It said these laws must “yield to the basic right of women to live with dignity, under equal protection of laws, without any discrimination on the basis of gender or religion”.
Earlier, the top court had said the petitions challenged the prevalent practices of polygamy and ‘nikah halala’ and they would be heard by the Constitution bench. The Centre recently made it clear that it would oppose in the Supreme Court the practice of ‘nikah halala’ when the top court would examine its legal validity in the coming days.
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