Published: Tue, March 27, 2018
Medical | By Mark Scott

Indian SC to examine validity of polygamy

Indian SC to examine validity of polygamy

Supreme Court issued notices to the Centre and the Law Commission on Monday asking for their stand clear on a batch of petitions asking the two practices be abolished.

Within seven months of declaring talaq e biddat or triple talaq unconstitutional and invalid, on Monday the Supreme Court made a decision to examine the validity of the practices of polygamy and some other forms of marriages in the Muslim community and referred the case to a Constitution bench to adjudicate.

The advocates referred to the Supreme Court's triple talaq judgment and pointed out that the issues raised in the present petition were not addressed by the Constitution Bench in the triple talaq judgment. Under it, a man can not remarry his former wife without her going through the process of marrying someone else, consummating that marriage, getting divorced and observing a separation period called Iddat.

In a historic ruling in August a year ago, the five-member bench of the apex court, by a majority of 3:2, had held instant triple talaq as unconstitutional.

The bench was hearing at least three petitions including some PILs challenging the practices on various grounds including that they violate Right to Equality and gender justice.

"I have also requested the SC to declare Nikah Halala as rape under section 375 of the IPC, polygamy an offence under section 494 of the IPC and triple talaq an offence under section 498 of the IPC", Upadhyay told ANI.

In August previous year, Chief Justice J.S. Khehar had said "we have taken a conscious decision to deal only with triple talaq and not polygamy or "nikah halala".

With time, her husband tortured her to bring more dowry or else threatened to give her talaq.

Those being of Nikah Halala and the rampant polygamy that exists in the Islamic culture. The court has been moved by Sameena Begum, Nafisa Khan, Moullium Mohsin and BJP leader and advocate Ashwini Kumar Upadhyay challenging the practice of polygamy, nikah halala, nikah mutah and nikah misyar on the grounds of these being violative of Article 14, Article 15 and Article 21 of the Constitution.

Nikah Mutah and Nikah Misyar are both temporary marriages where duration of the relationship is specified and agreed upon in advance.

He said that a man "by considering the woman an object of man's desire" and by practising "nikah halala, nikah mutah, nikah misyar and polygamy causes gross affront to the dignity of women".

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.

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