Background and Issues

 

In the Shah Bano case, the Supreme Court urged the central government to consider integration of personal laws, in 1985. Thirty years after, in 2015, the effect of gender discrimintaion in muslim marriage laws were discussed in a suo moto writ petition registered while deciding Prakash & ors v. Phulavati & ors.


 

Later in 2017, the Court declared triple talaq unconstitutional. Section 2 of the Muslim Personal Law (Shariat) Application Act,1937 was considered violative of Articles 14, 15 and 21 with regards to triple talaq. Other practices such as Polygamy and Nikah Halala were not delcared unconstitutional although the Court noted that these practices needed to be scrutinised. 


 

What does the petitioner seek?

 

The petitioner prayed for the Court to

  1. Declare Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 unconstititional and violative of Articles 14,15, and 21 to the extent of its recognition of Nikah Halala and Polygamy

  2. Direct the Union to take action against any institutions or persons who run Sharia Courts which decide cases pertaining to marriage, divorce, inheritance and succession.

  3. Declare Triple Talaq as Cruelty under Section 498A; Nikah Halala as rape under Section 375; and Polygamy as an offence under Section 494 of the Indian Penal Code, 1860.

  4. Direct the Law Commission to publish its report on the uniform civil code under Article 44, with the intent to do away with Sharia Law.


 

Grounds

Nikah Halala and Polygamy are inheretly violative of Fundamental Rights

The petitioner contends that the state can prohibit practices of Nikah Halala and polygamy under Article 21, in the similar viewn to ‘sati’ . The practices are injurious to the right to life and liberty.

 

They are gender discriminatory in nature. Nikah halala amounts to rape and Polygamy is unlawful, and both acts are contrary to the rights of women. Articles 14 and 15 of the Constitution are violated.

 

Laws dealing with marriage and succession are not a part of religion

The petitioner contends that religion does not cover marriage and succession. Fundamental rights have a superseding effect on these issues. Further, the law has to be contemporary, and keep up with international law. This makes a case to reevaluate personal laws. 

 

The petitioner also noted that the Constitution has primacy over common law, which in turn has primacy over personal laws. The scope that religious laws have over marriage and succession are thus overshadowed by the Constitution.