The National Human Rights Commission (NHRC), the National Commission for Women (NCW), and the National Commission for Minorities (NCM) have been requested to respond to a number of petitions challenging the constitutionality of various Muslim religious practises, including polygamy and nikah halala. The hearings will continue next month.
The panel, which was led by justice Indira Banerjee and included the judges Hemant Gupta, Surya Kant, MM Sundresh, and Sudhanshu Dhulia, gave notice to the Centre in response to a separate petition that criticised polygamy, calling it exploitative, anti-woman, and discriminatory.
In their appeal, five Hindu women led by Kiran Singh and an NGO argued that the practise violated Section 494 of the Indian Penal Code (IPC), which carries a maximum seven-year term for those who engage in polygamy.
On an oral request from senior attorney Shyam Divan, who was arguing for one of the petitioners—BJP leader Ashwini Kumar Upadhyay—the top court added NHRC, NCW, and NCM as parties to other pending petitions challenging the practise of polygamy as well as nikah halala, nikah misyar, and nikah mutah.
The bench stated, “We will have it after Dussehra vacations since notices have to go to so many folks.”
Advocate Vishnu Shankar Jain presented arguments in support of the Hindu woman’s petition against polygamy and urged that this Muslim practise, which is permitted under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, be declared unconstitutional.
The petitioners claimed that since Section 494 of the IPC clearly prohibits polygamous unions, such personal laws render the section’s provision discriminatory because people of other religions cannot take advantage of this privilege.
The irony in India is that, subject to the application of personal law, bigamy has been rendered punishable under Section 494 of the IPC. The petition quotes Jain as saying, “The concern is whether the State can design criminal legislation in such a way that may lead to discrimination and same behaviour may be unlawful for someone but joyful for others.“
By a 3:2 margin, the Supreme Court declared the triple talaq custom unlawful in August 2017 after determining that it was unfair to Muslim women and arbitrary. A petition brought by impacted Muslim women, led by Shayara Bano, resulted in the court’s decision.
Featured Image: Wikimedia Commons
