The All India Muslim Personal Law Board (AIMPLB) moved the Supreme Court on Monday seeking impleadment in petitions against polygamy and ‘nikah halala’, arguing that Mohammedan law is founded essentially on the Holy Quran and the Hadith of the Prophet, and thus it cannot fall within purview of the expression ‘laws in force’, as mentioned in Article 13 of the Constitution.
Thus, the Board contended, its validity “cannot be tested”.
In its plea, the Board 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”, and that the “fundamental source of personal laws are their respective scriptural texts”.
The AIMPLB said Article 44 of the Constitution, which envisages a Uniform Civil Code, is only a directive principle of state policy and is not enforceable.
The petition has urged the court to permit it to be impleaded in a petition filed by Delhi-based Nafisa Khan — who claimed to be a victim of these practices — in which the top court had issued notice in 2018. Khan’s petition contended that the practices violate Articles 14, 15, 21 and 25 of the Constitution.
Issuing the notice in March 2018, the court had also said that a five-judge Constitution bench will consider the matter.
In August 2017, the Supreme Court had, in a 3:2 majority judgment, “set aside” the centuries-old practice of instant triple talaq — or talaq-e-biddat — in which Muslim men could divorce their wives by uttering talaq three times in quick succession.
The court had, however, said the issues of polygamy and nikah halala will be dealt separately.
Subsequently, Khan approached the court stating that Section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to the Muslim community by virtue of Muslim personal law and that a married Muslim woman had no recourse to filing bigamy charges against husband.
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