The Supreme Court on Thursday
said that it will constitute a fresh five-judge constitution bench at an
"appropriate stage" to take up petitions challenging the
constitutional validity of polygamy and 'nikah halala' among Muslims.
Advocate Ashwini Upadhyay, who has filed a plea in connection with
the issue, mentioned the matter before a bench headed by Chief Justice of India
D.Y. Chandrachud. The bench, also comprising Justices P.S. Narasimha and J.B.
Pardiwala, said that it will consider the matter. The Chief Justice said,
"At an appropriate stage, I will constitute a constitution bench".
On August 30, a five-judge constitution bench comprising
Justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh, and
Sudhanshu Dhulia issued a notice on the petitions and made the National Human
Rights Commission (NHRC), National Commission for Women (NCW) and the National
Commission for Minorities (NCM) parties to the matter and sought their response
in the matter.
However, two judges', Justice Banerjee and Justice Gupta, have
retired now, therefore there is a need to re-constitute the bench to hear a batch
of pleas challenging the practices of polygamy and 'nikah halala'.
Upadhyay's plea said the injury caused to the women as practice of
triple-talaq, polygamy and nikah-halala is violative of Articles 14, 15 and 21
of the Constitution and injurious to public order, morality, and health.
The plea sought a direction to declare Section 2 of the Muslim
Personal Law (Shariat) Application Act, 1937, unconstitutional and violative of
Articles 14, 15 and 21 of the Constitution, insofar as it seeks to recognise polygamy
and nikah-halala.
"It is well-settled that common law has primacy over the
personal laws. Hence, this court may declare that -- Triple Talaq is cruelty
under Section 498A of the IPC, 1860, Nikah-Halala is rape under Section 375 of
the IPC,1860, and Polygamy is an offence under Section 494 of the IPC,
1860", said Upadhyay's plea.
In August 2017, the top court held that Muslim practice of 'triple
talaq' is unconstitutional and struck it down by 3:2 majority. Polygamy allows
a Muslim man to have four wives, and once a Muslim woman has been divorced, her
husband is not permitted to take her back even if he had pronounced talaq under
the influence of any intoxicant, unless his wife undergoes nikah-halala, which
involves her marriage with another man, who subsequently divorces her so that
her previous husband can remarry her.