Background and Issues

 

The petitioner Nafisa Khan was married in 2008. In 2018, her husband married another woman without getting a divorce from the petitioner. Ms. Khan submitted a complaint to the police. However, an FIR was not filed since Muslim personal laws permit Muslim men to have up to four wives.

 

Bigamy is punishable under personal laws for Christian, Parsi, Hindu, Buddhist, Sikh and Jain communities. However, the Dissolution of Muslim Marriages Act, 1939 does not protect Muslim women from bigamy or polygamy. 

 

What does the petitioner seek?

 

The petitioner prayed for the Court to

  1. Declare polygamy to be contrary to Articles 14, 15, 21 and 25 of the Constitution of India, 1950

  2. Declare Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 unconstitutional with respect to validating polygamy

  3. Alternatively declare 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” occurring in Section 494 IPC as violative of Articles 14, 15 and 21 of the Constitution

  4. Dissolve the Muslim Marriages Act, 1939, to the extent that it allows bigamy.

  5. Declare that a woman divorced through triple talaq can remarry her husband without having to undergo Nikah Halala


 

Grounds

 

Striking difference between religious faith and religious practices

 

The petitioner referred to State of Bombay v. Narasu Appa Mali, where the Bombay High Court had made the distinction between religious faith and beliefs, and religious practices. The Court held that the State only protects religious faith and beliefs. Further, that practices rooted in religion that are contrary to public order and welfare required State intervention.

 

The petitioner contended that the State is not bound by Article 25 with regards to marriage and divorce. The petitioner further referred to Entry 5 of List III which confers powers on the legislature to make, amend and repeal laws pertaining to marriage and divorce. Ms. Khan contends that failure of the Legislature to make discriminatory laws void is contrary to fundamental rights of a Muslim woman.

 

The Court has a duty to interfere, regardless of legislative action

 

The petitioner stated that in various cases including Ahmedabad Women Action Group v. Union of India the Court has refused to interfere in practices in Muslim personal laws. The Courts noted that these were policy decisions left to the Legislature. The petitioner contends that these acts are grave violations of fundamental rights, demanding the Court’s interference. 

 

She further referred to “constitutional morality” as a vital component of the Constitution, as laid down in Manoj Narula v. Union of India. The Court must exercise this morality to quash the practices of polygamy and Nikah HalalaI.