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Fresh plea in Supreme Court to declare polygamy in Islam illegal

Context:

  • A fresh plea was filed in the Supreme Court seeking to declare as “illegal” and “unconstitutional” the practices of polygamy and ‘nikah halala’ among the Muslim community.

What has happened?

  • The petition was filed by a Delhi-based woman.
  • The petition has said that by virtue of Muslim Personal Law, section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to Muslims and no married woman from the community has the avenue of filing a complaint against her husband for the offence of bigamy.
  • The plea has also sought to declare the Dissolution of Muslim Marriages Act, 1939, unconstitutional and violation of fundamental rights.
  • The petitioner, claimed to be a victim of such practices, has alleged that her husband and his family used to torture her for want of more dowry and she was ousted from the matrimonial home twice.
  • She also alleged that her husband had married another woman without taking any legal divorce from her and the police had refused to lodge FIR under section 494 and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC stating that polygamy was permitted under the Sharia.
  • On March 5, Delhi BJP leader and advocate Ashwini Kumar Upadhyay had moved the apex court against the practices of polygamy and nikah-halala saying they violated the basic fundamental rights of Muslim women granted under the Constitution.

What is Nikah halala?

  • The term ‘Nikah halala’ is a practice intended to curb the incidence of divorce, under which a man cannot remarry his former wife without her having to go through the process of marrying someone else, consummating it, getting divorced and observing a separation period called ‘iddat’ before coming back to him.

What is polygamy?

  • Polygamyis the practice of marrying multiple spouses.
  • When a man is married to more than one wife at a time, it is called
  • When a woman is married to more than one husband at a time, it is called 
  • If a marriage includes multiple husbands and wives, it can be called a group marriage.
  • Polygamy is banned under Hindu Marriage act, 1955 and section 494 of IPC (Indian penal code) makes it a punishable offence. Apart from that Koran allowed polygyny under special historical circumstances.

Why SC should delegitimize polygyny in India?

Supreme Court should delegitimize and completely ban polygyny in India because:

  • This practice is considered a violation of human and fundamental rights.
  • Against fundamental rights: This practices is in contravention of Article 14 (equality before law), and article 15(prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth) and article 21(right to life and personal liberty) of the Constitution.
  • The practice of polygamy is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith.
  • Against women dignity: The practice is highly derogatory and is against the dignity of women.
  • offensive practice : As per Hindu marriage act practice of polygny is a serious offence against section 494 Indian Penal Code(IPC) which is punishable .

Arguments against the complete ban:

However the complete ban and delegitimization of this practice may not be fruitful because of the following reasons:

  • The Hindu marriage act, 1955 although prohibits polygamy, it is still existing in Hindu society. Only laws cannot bring social changes. There is need to change out customs and social practices and it should come from the society itself.
  • Complete ban may lead to protective attitude among the Muslim community. Some people argue it is infringement into their religious and social life.
  • Some fringe elements of the society may Politicise this issue which may lead to chaos and unrest in the society.
  • Will be a violation of article 25 of the constitution which permit the right to practice and propagate any religion.

Way ahead:

  • The Supreme court should try to regulate such practices instead of complete ban and delegitimization.
  • The Muslim communities need to discuss such issues among themselves.
  • A religious reform within the society is very important for its existence and viability.
  • The Supreme Court should concentrate on eradicating these social evils from the Indian society without hurting the sentiments of any particular community.
  • The court should take steps to eliminate the flaws in the Marriage Acts of different religious communities and should ensure that equal rights and equal say is given to every member of the family especially the women.
  • A blanket ban on polygnous practice as mentioned in Sharia is not desirable as it can trigger communal violence.
  • A middle path has to be taken to ensure women’s rights are not infiltrated and laws are not abused or transgressed.

Conclusion:

Although the constitution provides religious freedom but it is not sacrosanct. It is subject to public order, morality etc. Hence no religious practice should discriminate against women and hide under the garb of right to religion.  Therefore, the Supreme Court of the land should concentrate on eradicating these social evils from the Indian society without hurting the sentiments of any particular community.

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