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PIL filed to criminalize polygamy and nikah halala: SC

One of many Muslim women victimized by Polygamy, Sameena Begum, mother of three filed a public interest litigation before the Supreme Court of India that polygamy and nikah-halala are to be criminalized under the provisions of Indian Penal Code and sec. 2 of the Muslim Personal Law (Shariat) Application Act validating the 'draconian' system must be declared unconstitutional.
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One of many Muslim women victimized by Polygamy, Sameena Begum, mother of three filed a public interest litigation before the Supreme Court of India that polygamy and nikah-halala are to be criminalized under the provisions of Indian Penal Code and sec. 2 of the Muslim Personal Law (Shariat) Application Act validating the ‘draconian’ system must be declared unconstitutional.

Sameena Begum, a resident of South Delhi moved to the Supreme Court has been a victim of such unfortunate incident. When she complained against her husband who had two sons with her, for subjecting her with cruelty and torture gave her triple talaq and her second husband also who already was married to another woman beforehand gave her triple talaq when she was pregnant with his child.

Advocate Archana Pathak Dave, representing her petition said that its not only her, Sameena Begum, but it is the story of millions of Muslim women in India who are suffering from these evil practises of ‘polygamy’ and ‘nikah halala’ which are very common in the Muslim society. Sameena explaining the concept of polygamy said it started in the seventh century after the defeat of the Muslims in the battle of Uhud near Medina between early Muslims and the inhabitants of Mecca, which resulted into death of millions of men leaving behind widows and orphans; but in present period it has turned into a evil practise.

Sameena shared her experience that she got married to Javed Anwar, her first husband in 1999 and had two sons with him out of that marriage, but she faced abuse and demands for money in the matrimonial house which compelled her to lodge a complaint against him under sec. 498A and in return Javed sent her a letter giving her ‘triple talaq’. Second time she got married to Riyazuddin, who was already married to another woman Arifa, and Sameena was the second wife, gave her ‘triple talaq’ over phone when she was pregnant with her child with Riyazuddin.

A similar plea has been filed by advocate and activist Ashwini Kumar Upadhaya on the same issue of polygamy and nikah halala among Muslims, earlier last week. In her petition, Upadhaya argued that common law has more primacy over the personal laws, which should criminalize triple talaq as cruelty under sec. 498A of IPC, nikah halala as rape under sec. 375 of IPC, and polygamy as an offence under sec. 494 of IPC. Sameena in her petition talked almost similar to that of Upadhaya, mentioning that personal laws should in compliance with the constitutional law, and the provisions of triple talaq and nikah halala are violating the constitutional validity violating the provision of equality before law under art. 14, no discrimination of any citizen on the ground of religion and gender under art. 15, and personal liberty under art. 21 of the Constitution of India.

Moreover, art. 44 of the Constitution of India prescribes the state to introduce a Uniform Civil Code throughout the territory of India to treat all the citizens with equality and get equal protection of law, which supports the fundamental right to equality. Thus, marriage laws cannot be in violation of the fundamental rights ensured by the Constitution of India.

In the recent case of Shayara Bano vs. Union of India & ors, Supreme Court has already limited the provision of triple talaq, and it has decided to deal with the matters of polygamy and nikah halala separately.

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Reviewed by:
Rashmita Das
Published on 12-Mar-2018
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