Plea against polygamy, Nikah Halala: Supreme Court Constitution Bench seeks response from NCW, NHRC, Minorities Commission

The Supreme Court on Tuesday sought the response of the National Human Rights Commission (NHRC), the National Commission for Women (NCW), and the National Commission for Minorities (NCM) on plea challenging the practices of polygamy and Nikah Halala among Muslims. .A Constitution Bench of Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia issued notice to the above bodies, also newly-impleaded respondents in the matter, at the oral request of Senior Advocate Shyam Divan.The Bench posted the matter for hearing after Dussehra. The Court is hearing a batch of petitions challenging the constitutionality of polygamy in Islam, along with other practices like Nikah Halala and Nikah Mutah. The petitions have also assailed the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act insofar as it sanctions such practices.Nikah Halala is the practice as per which once a Muslim woman has been divorced, her husband is not permitted to take her back even if he pronounced Talaq under influence of an intoxicant, unless his wife marries another man, who subsequently divorces her so that her previous husband can re-marry her.Nikah Mutah literally means “pleasure marriage”, and is a verbal and temporary marriage contract that is practiced in Muslim Community, in which duration of marriage and the mahr (payment made at time of marriage) is specified and agreed upon in advance. It is a private contract made in a verbal format.Preconditions for Nikah Mutah are: The bride must not be married, she must be Muslim, she should be chaste, and not addicted to fornication. She may not be a virgin (if her father is absent and cannot give consent). At the end of the contract, marriage ends and women undergo iddah, a period of abstinence from marriage (intercourse). The iddah is intended to give paternal certainty to any child/girl if she becomes pregnant during the temporary marriage.Nikah Misyar, which translates to “traveller’s marriage” is a form of marital union wherein the husband and wife renounce several marital rights such as living together, the wife’s rights to housing and maintenance money, and the husband’s right to access.A written declaration of intent to marry and acceptance of the terms are required in other forms of marriages in Islam. Generally, Nikah Mutah and Nikah Misyar have no prescribed minimum or maximum duration.The four petitioners before the Court are Sameena Begum, Nafisa Khan, Ashwini Kumar Upadhyay and Moullim Mohsin Bin Hussain Bin Abdad Al Kathiri..In March 2018, seven months after the apex struck down the practice of instant Triple Talaq, the Supreme Court had issued notice in the present batch of petitions.The top court after issuing notice to the Central government and the National Commission for Women, had referred the matter to a Constitution Bench.The case was, subsequently, mentioned several times over the last few years for listing but without success..When the case came up for hearing, Justice Banerjee noted that since multiple customs are under challenge, the matter would take time. The judge also said that when the Bench takes up the matter next, it would hear it for an entire day..[Read order]

Plea against polygamy, Nikah Halala: Supreme Court Constitution Bench seeks response from NCW, NHRC, Minorities Commission

Abhimanyu Hazarika

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