The Indian legal system comprises myriad laws that govern the rights and responsibilities of its citizens. Among these are personal laws, which include matters related to marriage, divorce, and inheritance. In this context, some practices sanctioned by Muslim Personal Law — namely polygamy and Nikah Halala — are currently being challenged in the Supreme Court.
Supreme Court’s Response
In response to several petitions challenging the constitutional validity of these practices, a five-judge Constitution bench of the Supreme Court has issued notices to the National Human Rights Commission (NHRC), the National Commission of Women (NCW), and the National Commission of Minorities. Previously, the Supreme Court had clarified that the Muslim divorce practice of ‘Talaq-e-Hasan’ is unlike triple talaq, and women also have ‘Khula’ as an option for separation.
Petitioners’ Arguments
The petitioners have called for a ban on Polygamy and Nikah-Halala, arguing that these practices render Muslim wives extremely insecure and vulnerable, infringing upon their fundamental rights. They are also advocating for Section 2 of the Muslim Personal Law (Shariat) Application Act to be declared unconstitutional, citing violations of Articles 14 (right to equality), 15 (discrimination on grounds of religion), and 21 (right to life).
Counter Arguments
Opponents of the petition argue that personal laws are not under the purview of the Constitution, and thus their constitutionality cannot be examined by the Supreme Court. They assert that both the apex court and various High Courts have previously refrained from intervening in practices sanctioned by personal law.
Muslim Personal Law on Marriage
As per Sharia or Muslim personal law, men are permitted to practice polygamy, meaning they can have more than one wife at the same time, up to a total of four. ‘Nikah halala’ is a process in which a Muslim woman must marry another man and get divorced from him before being allowed to remarry her previous husband.
Application of Muslim Law in India
Enacted in 1937, The Muslim Personal Law (Shariat) Application Act formulated Islamic law codes for Indian Muslims. The British rulers, aiming to govern Indians according to their cultural norms, established the Shariat Application Act to regulate aspects of Muslim social life such as marriage, divorce, inheritance, and family relations.
Personal Laws of Other Religions
Different religions in India are governed by distinct personal laws. For instance, the Hindu Succession Act of 1956 outlines guidelines for property inheritance among Hindus, Buddhists, Jains, and Sikhs, while the Parsi Marriage and Divorce Act of 1936 lays down rules for Parsis following their religious traditions.
Is the Shariat Application Act Immutable?
The Shariat Application Act’s applicability has often been a subject of controversy. It has been argued that in matters of personal disputes, the state should not interfere, and religious authorities should make decisions based on their interpretation of the Quran and the Hadith.
Way Forward
To ensure justice and equality, it is crucial to build trust between the government and society, and to align with social reformers over religious conservatives. Calling for codification of all personal laws can be a step in the right direction, as this would bring to light any prejudices and stereotypes within these laws. Ultimately, these laws should align with the fundamental rights enshrined in the Constitution.
