The All India Muslim Personal Law Board on Monday filed a petition in the Supreme Court opposing a public interest litigation plea challenging the validity of the practices of nikah halala and polygamy in the Muslim community, reported Live Law. The board urged the court to include it as a party in the matter. The PIL plea was filed by Bharatiya Janata Party leader Ashwini Kumar Upadhyay.
Nikah halala is a practice that allows a divorced Muslim woman to remarry her husband. According to Islamic law, a Muslim man can divorce and remarry a woman twice. However, if the man dissolves the marriage for the third time, he can remarry the same woman if she first marries another man, consummates the marriage, and if that man dies or willingly asks for divorce. The practice of polygamy allows a Muslim man to have more than one wife.
The board said the Supreme Court had dismissed similar petitions in 1997. It added that petitions challenging a religious practice cannot be filed by a person who is not a part of that particular religion. “That personal laws do not derive their validity on the ground that they have been passed or made by a legislature or by other competent authority,” read the board’s petition. “The fundamental source of personal laws are their respective scriptural texts.”
The board argued that validity of Muslim laws cannot be tested as “the Mohammedan law is founded essentially on the holy Quran and the Hadith of the Prophet Mohammed and thus it cannot fall within purview of expression ‘laws in force’ as mentioned in Article 13 of the Constitution”.
In 2018, the Supreme Court had decided to examine the constitutional validity of the two practices, and referred the matter to a Constitution bench. However, during a hearing in the Sabarimala case, a nine-judge bench said it was not concerned with the challenge to polygamy at the moment.
Upadhyay has also sought the framing of a Uniform Civil Code. He said the code should be formed after considering the best practices of all religions, sects, civil laws of developed countries, and international conventions. It should then be published online for at least 60 days for extensive public debate and feedback.
Referring to the Uniform Civil Code, the Muslim personal law board said Article 44 of Constitution was “only a directive principle of state policy and is not enforceable”, reported News18. Article 44 says the state shall “endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Establishing such a code has been on the ruling Bharatiya Janata Party’s agenda for long, and was on its manifesto for the 2019 General Elections. In the absence of such a code, various faiths have their own personal laws on matters such as marriage, divorce and succession.