Background and Issue
Nikah Mutah and Nikah Misyar are types of temporary marriage contracts in Islam. They mean ‘pleasure marriage’. The duration and mahr (gifts) are decided in advance, with the duration ranging from 3 days to a year. The rules stipulate that the bride should be a virgin, if her father is present to give consent, without whom the bride need not be a virgin. At the end of the period of marriage, the woman has to spend a period of iddah where she must observe abstinence from sex, inorder to ensure the consummation of marriage has not resulted in a child.
The Petitioner Moullim Mohsin Bin Hussain Bin Abdad Al Kathiri filed a writ petition as a PIL to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which allows Nikah Halala, Nikah Mutah and Nikah Misyar invalid.
What does the petitioner seek?
The petitioner prayed for the Court to
Declare Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 unconstititional and violative of Articles 14,15, and 21 of the Constitution of India, 1950. to the extent of its recognition of Nikah Halala, Nikah Mutah and Nikah Misyar.
Declare that the words “in any case in which such marriage is void by reason of its taking place during the life of such husband or wife” in Section 494 of the IPC as void and inoperative as they are contrary to Articles 14,15, and 21 of the Constitution.
The practices are inconsistent with Islam as well as the law
The petitioner contends that several Islamic Scholars have already declared Nikah Halala, Nikah Mutah and Nikah Misyar void and forbidden. These Scholars have recognised the practices as religiously sanctioned rape.
Further, the practices are also contrary to Articles 14, 15, and 21 of the Constitution. The right of Muslim women to live a life of dignity is violated. The petitioner also noted that the International Covenant on Civil and Political Rights (ICCPR) emphasises on equal treatment with regard to the right to marry, and India is a signatory of ICCPR. The petitioner referred to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which mandates States to eliminate discrimination against women in all matters relating to marriage and ensure equality of men and women.
Constitutional Morality requires the Court to value fundamental rights over religion
The petitioner refers to Manoj Narula v. Union of India where the Court recognised that the ‘constitutional morality’ requires non-arbitrariness and adherence to the rule of law. In furtherance of this, the Court is well within its powers to quash the practices of Nikah Halala, Nikah Mutah and Nikah Misyar under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
Further, the petitioner contended that the Constitution of India only protects the positive tenets of religion, and not those tenets that are against public order and morality. Muslim Law like other personal laws are subject to the rigours of fundamental rights.
Equality should be the basis of personal laws
The petitioner highlights that the practices of Nikah Halala, Nikah Mutah and Nikah Misyar are not extended to women. Muslim women cannot practice polygamy, highlighting that Islamic marriage laws are discriminatory to women and unequal in its rules.
Further, the petitioner contended that the practices of Nikah Halala, Nikah Mutah and Nikah Misyar constituted rape under Section 375 of the Indian Penal Code, 1860 (IPC), and Polygamy is an offence under Section 494 IPC.