Five months after it ruled instant divorce as illegal, the Supreme Court said on Monday that a constitution bench would test the legality of two other aspects of the Islamic law on marriages: the practice of polygamy and temporary marriage contracts such as nikah halala and nikak mut'ah.
The petitions could pave 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.
In Nikah Halala, a Muslim woman, who wishes to restore her marriage after divorce, is required to marry someone else, consummate the marriage, divorce him and after that, she can marry her previous husband. "Since we do not think that the Law Commission of India should be made a respondent, we have confined issuance of notice to the parties which have been arrayed as respondents in this writ petition", a bench of Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud. It said the CJI will decide the Constitution Bench.
The five-judge constitutional bench earlier held the triple talaq as unconstitutional in its verdict by a majority of 3:2 past year.
He said the practice of triple talaq, polygamy and nikah halala are violative of Articles 14, 15 and 21 of the Constitution and injurious to public order, morality and health. The Court agreed to this and proceeded to refer the matter to a Constitution Bench, considering the importance of the matter. Nikah mutah and nikah misyar, the petitioners told the Supreme Court, are "temporary" marriages for "pleasure".
Today, the bench was hearing as many as four petitions including a PIL challenging the practices on various grounds including that they violate Right to Equality and gender justice. The court has issued a notice to the centre to make their stand on the matter clear. In PILs filed, the petitioner now sought a declaration where Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as unconstitutional. The Bench had then said the said issues could be debated upon as and when an affected party approached the court.
There is also no requirement for a Muslim husband to take permission from his first wife before contracting second marriage, keeping them out of the purview of offence of polygamy as defined under penal provisions, they said.
Kathiri, who also raised the issue of nikah mutah and nikah misyar, submitted that "a complete ban on nikah halala, nikah mutah, nikah misyar and polygamy has been the need of the hour as it renders Muslim women extremely insecure, vulnerable and infringes their fundamental rights".