New Delhi : The Central government is likely to support a PIL challenging the constitutional validity of the practice of polygamy, nikah halala (a requirement for a divorced couple to remarry), nikah mutah (temporary marriage in the Shias) and nikah misyar (short-term marriage among Sunnis) among the Muslim community.
The government, which has already taken a strong position against the practice of triple talaq, nikah halala and polygamy on the touchstone of their constitutionality in the Shayara Bano case, is likely to reiterate it when the matter comes up for hearing before the constitution bench, said informed sources.
The Supreme Court on March 26 sought the Central government’s response on the plea.
Noting the importance of the issue, the top court had said the matter would be heard by a Constitution bench.
It is a matter of common understanding that when the government opposed instant triple talaq on the grounds of gender equality and justice, it will oppose nikah halala and polygamy on the same grounds, said a source in the Union Law Ministry.
Lawyer Madhavi Divan, who presented the government’s stand during the hearing of challenge to instant triple talaq, said that in the Shayara Bano case “the Centre has already taken a strong stand on affidavit” on the issue of triple talaq, nikah halala and polygamy.
The Central government in an affidavit filed in April 2017 described triple talaq, nikah halala and polygamy as “patriarchal values and traditional notions about the role of women in society” that were an impediment to the goal of achieving social democracy.
“The conferment of a social status based on patriarchal values or one that is at the mercy of men-folk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution,” the government had said.
“The right of a woman to human dignity, social esteem and self worth are vital facets of her right to life under Article 21 of the Constitution.”
Contending that the practice of triple talaq, nikah halala and polygamy were not protected by Article 25(1) guaranteeing right to profess, practice and propagate religion, the government in 2017 said that the “fundamental question (is)… whether in a secular democracy, religion can be a reason to deny equal status and dignity, available to women under the Constitution.”
When the government filed the affidavit, the challenge was to triple talaq, nikah halala and polygamy but when the matter was taken up for hearing by the Constitution bench, headed by then Chief Justice Jagdish Singh Khehar, the issue was narrowed down to the constitutional validity of instant triple talaq only.
The top court by a majority 3-2 verdict on August 22, 2017 held that triple talaq being practised by the Muslim community was “unconstitutional”, “arbitrary” and “not part of Islamic faith”.