Constitutional Validity of Triple Talaq, Nikah-halala and Polygamy

March 27, 2018

 

Indian constitution attempts to create a balance between Right to religion and Right to equality. However, multiple cases have brought up conflict between the two which have to be resolved by judicial judgments. One such conflict has been between the Muslim personal law and the right to gender equality enshrined under Article 14. Supreme court has agreed to hear a petition challenging the constitutional validity of Polygamy and Nikah Halala. It has already dealt with Triple talaq in multiple cases like Shayra Bano case, Shamin Ara case and Dagdu Pathan case but Polygamy and Nikah Halala has remained untouched. The petition seeks to declare Triple talaq as cruelty under Article 498A of the IPC, 1860, Nikah Halala as Rape under section 375 of the IPC and Polygamy as an offence under section 494 of the IPC.It also seeks to declare section 2 of the Muslim Personal Law (Shariat) Application Act as unconstitutional.

Issues in front of the Judiciary:

  1. Declaration of Section 2 of the Muslim Personal Law (Shariat) Application Act as unconstitutional for violating Article 14, 15, 21 and 25 of the Indian Constitution.

  2. Declaration of  Triple talaq as cruelty under Article 498A of the IPC, 1860, Nikah Halala as Rape under section 375 of the IPC and Polygamy as an offence under section 494 of the IPC.

Terminologies:

  1. Triple Talaq: 

    1. Also known as talaq-e-biddat is a practice where a Muslim man can give instant divorce to his wife by stating the word talaq thrice. It is prevalent among India's Muslim community majority of whom follow the Hanafi Islamic school of law.

  2. Nikah halala:

    1. It is a practice where a Muslim women divorced by her Husband can remarry her only after she marries someone else, consummates the marriage and then gets a divorce.

  3. Polygamy:

    • Polygamy allows a man to have more than one wife.

 

Views of Islamic Community who oppose reform in these practices:

  1. These practices are historically determined and context specific. 

  2. There are strict guidelines under Shariat Law and those need to be followed by the Islamic community and thus the legislature needs to respect the right to religion of the Islamic community.

  3. As per a study by Flavia Agnes, laws against bigamy have not led to reduction in bigamy in Hindu community. Thus, instead of reform coming from above, the reform should come from the community itself which will lead to better implementation and proper eradication of these practices.

  4. As per Islam, men are held responsible for the maintenance of family and children and thus have the authority to divorce when the marriage breaks down. Women can also opt for divorce through "Khula" by seeking the help of Qazi if her husband is absconding or of bad character and so on.

 Why the legislature should be allowed to reform the practices:

  1. The right to religion provided under Article 25 of the Constitution itself starts with the words, "Subject to public order, morality  and health and to other provisions of Part III" of Indian Constitution which makes it clear that right to religion is not absolute but conditioned on the above said premises. Since, Triple talaq, nikah halala and Polygamy is seen as injurious to morality (time specific term) of the modern times. It should be regulated by the legislature.

  2. Earlier also, practices like Sati, Untouchability, Devadasi system have been abolished by imposing law from above. Thus, there is nothing wrong by imposition of law to reform personal laws and thus to help personal laws to keep up with the changing times.

  3.  Supreme Court in Manoj Narula vs. Union of India, 2014 case gave the concept of Constitutional morality which states that, "Constitution of India is a living instrument, and the principle of constitutional morality, essentially means, to bow down to the norms of the Constitution, and to not act  in a manner, which is arbitrary or violative of the law, since commitment to the Constitution is a facet of Constitutional morality". Thus, personal laws in violation to the Constitutional morality should be expunged out.

Conclusion:

  1. Reforms need to be initiated for all religions through awareness generation and creation of civil movements demanding social reforms. These need to be coupled with Laws and their strict implementation. This will uphold Constitutional morality

  2. Education can be utilised for creating awareness amongst children who are the flag-bearers of our nation's future. Also, it is proved that children help in changing bad habits of their parents and relatives.

  3. It is wrong to see marriage as a contract as it undermines the bonding and selfless love that spouse feel towards each other. Also, the norm of seeing marriage as a contract is patriarchal in its approach and thus needs to be removed for ensuring equality.

 

 

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