SC seeks Center’s response on plea challenging Polygamy, Nikah Halala among Muslims

New Delhi: The Supreme Court on Monday agreed to examine the constitutional validity of polygamy and nikah halala amongst the Muslim community. The apex court also sought response from Union government and the Law Commission on the plea challenging the practices.

A bench headed by Chief Justice Dipak Misra considered the submission that an earlier five-judge constitution bench, in its 2017 verdict, had kept open the issue of polygamy and ‘nikah halala’ while quashing instant triple talaq.

A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud said the matter would be heard by a fresh five-judge Constitution Bench.

While polygamy allows a Muslim man to have four wives, ‘nikah halala’ deals with the process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.

The bench was hearing at least three petitions including some public interest litigation (PIL) challenging the practices on various grounds including that they violate Right to Equality and gender justice.

Last year, Union government in its written submissions during the triple talaq hearing told the Supreme Court that Polygamy is not a religious practice but rather a social custom and it is not protected under Article 25 of the Constitution, which barred the State from interfering with “someone’s religious belief.”

“Practices such as polygamy cannot be described as being sanctioned by religion, in as much as historically, polygamy prevailed across communities for several centuries, including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians. It had less to do with religion and more to do with social norms at the time.”

Attorney-General Mukul Rohatgi and advocate Madhavi Divan continued their argument saying that “In the Holy Quran as well, it appears that the prevalent or perhaps even rampant practice of polygamy in pre-Islamic society was sought to be regulated and restricted so as to treat women better than they were treated in pre-Islamic times”.