A fresh plea was on Wednesday filed in the Supreme Court seeking to declare as “illegal” and “unconstitutional” the practices of polygamy and nikah-halala among the Muslim community. Nikah-halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her having to go through the process of marrying someone else, consummating it, getting divorced and observing a separation period called ‘Iddat’ before coming back to him.
The petition, filed by a Delhi-based woman, has said that by virtue of Muslim Personal Law, section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to Muslims and no married woman from the community has the avenue of filing a complaint against her husband for the offence of bigamy. “This is in blatant contravention of Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (right to life and personal liberty) of the Constitution,” the petition filed through advocate Ashwani Kumar Dubey said.
The plea has also sought to declare the Dissolution of Muslim Marriages Act, 1939, unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for women in India belonging to other religions. “The practice of polygamy is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith,” the plea said, adding that while Muslim women cannot engage in a polyandrous marriage, Muslim men claim to have a right to re-marry.
“Such discrimination and inequality hoarsely expressed in the form of polygamy is abominable when seen in light of the progressive times of the 21st century,” it said. The petitioner, who herself claimed to be a victim of such practices, has alleged that her husband and his family used to torture her for want of more dowry and she was ousted from the matrimonial home twice.
She also alleged that her husband had married another woman without taking any legal divorce from her and the police had refused to lodge FIR under section 494 and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC stating that polygamy was permitted under the Sharia. On March 5, Delhi BJP leader and advocate Ashwini Kumar Upadhyay had moved the apex court against the practices of polygamy and nikah-halala saying they violated the basic fundamental rights of Muslim women granted under the Constitution.