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Within seven months of declaring talaq e biddat or triple talaq unconstitutional and invalid, on Monday the Supreme Court decided to examine the validity of the practices of polygamy and some other forms of marriages in the Muslim community and referred the case to a Constitution bench to adjudicate. The bench consists of Chief Justice Dipak Misra and Justice A M Khanwilkar and Justice D Y Chandrachud.
The bench agreed with a plea that the validity of such practices is needed to be examined to check whether it is violating the right to equality or not. To that purpose, they have also issued a notice to the centre asking to make it clear on banning those practices for violating the constitutional provisions.The court passed the order on a batch of petitions challenging sec.2 of the Muslim Personal Law (Shariat) Application Act 1937, for recognizing and validating the practice of Nikah Halala, Nikah Mutah, Nikah Misyar and polygamy.
The issue of Muslim marriages and polygamy was challenged in the court along with triple talaq but the court decided to deal with it later on. The constitution bench dealing with the forms of marriage and polygamy was told by senior advocates V Mohan Parasaran, V Shekhar, Sajan Poovayya and lawyer Gopal Sankaranarayanan that the bench declared triple talaq invalid did not look into other practices which were also been questioned. They contended that the prevalent practices of polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar should be declared illegal, as they are unconstitutional.
In Nikah Halala, a Muslim woman, who wishes to restore her marriage after divorce, is required to marry someone else, consummate the marriage, divorce him and after that, she can marry her previous husband. Nikah Mutah is a temporary marriage contract the validity of which must be decided in advance. In Nikah Mutah no right is conferred on the women. Nikah Misyar is similar to Mutah in which the women have some rights, rather the rights are divided between two- wife has the rights to housing and maintenance money while the husband has right to home keeping and access.
In August 2017 when the triple talaq was declared invalid, a five-judge constitution bench said that the matter of marriage shall be dealt with separately, later on. The bench opined that it is directed to place the matter before the Chief Justice of India for appropriate Constitution bench for dwelling upon the issues which may arise for consideration from the writ petition made. The petition said that practices of Nikah Halala, Nikah Mutah, Nikah Misyar and polygamy is a violation to the right conferred by Art.21 of the Constitution by considering women as an object for fulfilling men’s desire. A complete ban on these practices is needed immediately as these practices make Muslim women insecure, vulnerable and violate their fundamental rights.
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