BJP leader filed PIL in Supreme Court to declare Nikah Halala as ‘rape’

New Delhi: BJP leader Ashwini Kumar Upadhyay filed a fresh Public Interest Litigation (PIL) on Monday in the Supreme Court demanding to declare Nikah Halala as rape and polygamy an offence under IPC and declare them ‘unconstitutional’.

Delhi based lawyer, has also urged the apex court to declare both the practices as violation of fundamental rights guaranteed to Muslim women under Articles 14 (right to equality), 15 (right to non-discrimination) and 21 (right to life and liberty) of the Constitution.

Further, the PIL also urged the top court to declare ‘Nikah Halala’ as rape under 375 IPC and declare ‘polygamy’, an offence under 494 IPC and also triple talaq, an offence under 498 IPC.

Section 494 in the Indian Penal Code (IPC) says, whoever, having a husband or wife living, marries then such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

“The laws dealing with marriage and succession are not a part of religion, law has to change with time, and international covenants and treaties could be referred to examine validity and reasonableness of a provision,” the petition read.

Citing the top court’s August 2017 verdict in the triple talaq case, Upadhyay submitted that practices permitted or not prohibited by religion did not become a religious practice or a positive tenet of the religion and a sinful practice did not acquire the sanction of religion merely because it was practiced since long.

He urged the top court to declare Section 2 of Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional and violative of Articles 14, 15 and 21 of the Constitution, insofar as it sought to recognise and validate practice of polygamy and Nikah-Halala.

The practice of ‘Nikah Halala’ requires the divorced woman to marry someone else, consummate the marriage and then get a divorce in order to again marry her first husband, is prevalent among some Muslims despite being un-Islamic.

Last year during the hearing of the triple talaq case, the Supreme Court chose to decide the issue of instant triple talaq alone and refused to take up the issues of polygamy and Nikah-Halala.

Upadhyay also requested the top court to direct the Centre to take appropriate action against any person, institution and organisation running Sharia courts to decide cases relating to marriage, divorce, inheritance, succession or other similar matters.

Recently, SC has refused to entertain a PIL filed by Upadhyay seeking grant of minority status to Hindus in eight states. Earlier, SC has rejected his plea for making Hindi compulsory in schools.