In a big development, All India Muslim Personal Law Board (AIMPLB) on Monday has filed a petition in the Supreme Court opposing the public interest litigation (PIL) that challenged the validity of nikah halala and polygamy among Muslims. In its plea, the Muslim board has said legal issues like polygamy and other practices have already been decided in earlier judgments. It has also added that such PILs challenging religious practice cannot be filed by a person who is not a part of that religious denomination.
The plea said: "Personal laws do not derive their validity from whether they are passed by a legislature or other competent authority. the foundational source of these laws is their respective scriptural texts. the Muslim personal law is based on the holy Quran and the Hadith of Prophet Mohammad and hence does not fall within the purview of "laws in force" for the course of Article 13. So its validity cannot be tested against Part 3 of the Constitution."
All India Muslim Personal Law Board today filed an Intervention Application (IA) opposing the PIL seeking 'ban on polygamy, nikah halala, nikah mutah, nikah misyar and Sharia Court'— ANI (@ANI) January 27, 2020
Lawyer and BJP leader Ashwini Kumar Upadhyay had last year filed a plea challenging the Islamic practice of polygamy and Nikah Halala. He had also mentioned the matter for urgent hearing before a three-judge bench headed by Chief Justice of India Sharad Arvind Bobde. The Supreme Court had on December 3 said that it will hear a petition challenging the after the winter vacation.
In March 2018, a three-judge bench headed by the then Chief Justice Dipak Misra had referred the case to a constitution bench. Notably, during the hearing of Sabarimala, the 9-judge bench headed by CJI Bobde had combined rights of Parsi women to enter fire temple and practice of Genital mutilation among Dawoodi Bohra community but had not included polygamy.
The ruling BJP in its Lok Sabha manifesto had also proposed to eradicate practices such as Nikah Halala. The Manifesto mentioned: "We hope to modernize personal laws to prohibit practices such as Talaq-e-Biddat and Nikah Halala. We have determinedly taken substantive measures to ensure overall development of women and promote gender equality. Continuing our work, we will legislate a bill to prohibit and eliminate practices such as Triple Talaq and Nikah Halala."
While polygamy allows a Muslim man to have more than one wife, 'Nikah Halala' is a practice in which a woman, after being divorced by Triple Talaq, marries another man and gets divorced again in order to be able to remarry her former husband. However, the Muslim Women (Protection of Rights on Marriage), Bill, which received Presidential assent earlier this year, criminalises instant talaq and provides for a jail term of three years for the husband.