A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud agreed with a plea that validity of the practices needed to be examined in the light of the right to equality and issued notice to the Centre asking it to make its stand clear on banning them for being violative of constitutional provisions.
The court passed the order on a batch of petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, for recognising and validating the practice of Nikah Halala, Nikah Mutah and Nikah Misyar as well as polygamy.
These forms of Muslim marriages and polygamy had been challenged along with triple talaq before the apex court, which had left it open for adjudication at a later stage.
Senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayya and lawyer Gopal Sankaranarayanan told the bench that the Constitution bench, which declared triple talaq invalid, had not looked into the other practices whose legality have also been questioned.
They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar were unconstitutional and should be declared illegal.
In Nikah Halala, a Muslim woman, who wishes to restore her marriage after divorce, is required to marry someone else and consummate the marriage before divorcing him to remarry her previous husband. Nikah Mutah, which means pleasure marriage, is a temporary marriage contract in which the duration of the marriage and the mahr must be specified and agreed upon in advance. It is a private contract made in a verbal or written format does not confer any right on the woman.
Nikah Misyar is similar to Mutah marriage under which 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 home-keeping and access.
Muslim Personal Law Board, in its affidavit in the triple talaq case, had termed such practices as “undesirable”.
While declaring triple talaq invalid in August last year, a five-judge Constitution bench had thus explained while it kept the focus on the issue: “Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case, at the very outset, it was decided to limit the instant consideration, to triple talaq. Other questions raised in the connected writ petitions, such as, polygamy and ‘halala’ (and other allied matters), would be dealt with separately,” the apex court had said.
After going through the judgement, the bench agreed with the submission of the petitioners and asked them to serve copy of the petitions to the Centre so that it could take a stand on the issue when the case would be taken up for adjudication. “It is directed that the matter be placed before the Chief Justice of India for constitution of appropriate Constitution bench for dwelling upon the issues which may arise for consideration from the writ petitions,” the bench said.
“Practices of Nikah Halala, Nikah Mutah, Nikah Misyar and polygamy interfere with the right conferred by Article 21 of the Constitution. By considering the woman an object of man’s desire, practices of Nikah Halala, Nikah Mutah, Nikah Misyar and polygamy cause gross affront to the dignity of women. A complete ban on these practices is the need of the hour as they render Muslim women extremely insecure and vulnerable and infringe on their fundamental rights,” the petition said.
The practice of polygamy has been not only done away with among Hindus, but the same was also made punishable as a criminal offence. The practice was prevalent in the Hindu community till 1860 before the Indian Penal Code made it a criminal offence. The Hindu Marriage Act of 1955 also bars polygamy and lays down one of the conditions of valid marriage is that neither of the parties to the matrimonial alliance should have a living spouse, at the time of marriage.