IS BANNING TRIPLE TALAQ ENOUGH?

It has been months since triple talaq was held unconstitutional by the five judge bench of the Supreme Court in August, 2017. There are still other practices in Muslim religion that violate Article 14 & 15 of the Indian constitution as triple talaq did and that deprive women of their rights and status in the society.

A petition has been filed by Ashwini Upadhyay (advocate activist) in the Supreme Court praying to hold Polygamy and Nikah Halala under Muslim Personal Law as unconstitutional.

Polygamy is a practice where a man is allowed to take more than one wife at the same time.  Muslim man is allowed to have four wives at the same time.

Nikah Halala is a practice where a woman has to marry another man and has to consummate that marriage in order to remarry her first husband.

These practices are clearly in violation of the constitutional provision and deprive women of their rights and status in my opinion.

Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937

“Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

The above section is claimed to a violation of Article 14, 15, 21, 25 of the Indian Constitution in the petition. Upadhyay seeks declaration of section 2 of Muslim Personal Law (Shariat) Application Act as unconstitutional and a declaration that makes IPC provisions applicable on all citizens of India. He claims in her petition that triple talaq is cruelty under section 498A. Nikah Halala is rape under section 375 and polygamy is offence under section 494 of the Indian Penal Code, 1860.

He also seeks action on behalf of the court in order to direct the Sharia Courts and Law Commission of India to observe common law which is above personal law. Ashwini also criticized the court for not taking action to ban triple talaq even after declaring it as unconstitutional.

A similar petition has been filed in the Bombay high court in January this year. The petitiona has been filed by a victim of triple talaq whose husband gave her talaq in 2012 and got married again and is now forcing her to perform Nikah Halala as per Shariat Law so that he could become his wife again and he can avoid paying her any maintenance.

The writ petition filed in the Supreme Court was regarding declaration of Triple Talaq, Polygamy, and Nikah Halala as unconstitutional. The court held triple talaq as unconstitutional and decided the petition by determining if triple talaq is fundamental to Islamic religion without discussing the matter of nikah halala or polygamy. This fresh petition by the advocate activist brings new hope for Muslim woman who demand equal rights and freedom from centuries old manacles enforced on them in the name of religion.

 

By: Neha Bargotra, Student Reporter, INBA