Background and Issues

 

The Petitioner Sameena Begum was divorced through triple talaq by her first husband. As she had filed a complaint against him under Section 498A of the Indian Penal Code, 1860. Her marriage to the second husband also ended when she was given triple talaq over the phone. Ms. Sameena Begum filed the petition as a public interest litigation to quash the practices of polygamy and Nikah Halala.

 

The petitioner referred to Shayara Bano v. Union of India & Ors. where the Supreme Court held that triple talaq was unconstitutional. She also referred to the Suo Moto Writ petition registered by the Supreme Court in 2015 to consider gender discrimination suffered by Muslim women. 

 

The Petitioner examined the history of polygamy. She stated that it was devised as a tool to help war widows and orphans, and that it is not a licence to the modern Muslim man to marry multiple women. Further she noted that marriage is viewed as a contract in Islam and a woman can forbid her groom from marrying again as a condition of that contract. However, if a man marries a second time, it will amount only to a breach of contract. And not as an offence. 


 

What does the petitioner seek?

The petitioner prayed for the Court to

  1. Declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutial to the extent of its validation of the practice of polygamy and Nikah Halala.

  2. Declare the applicability of Sections 498A, 375 and 494 of the IPC on Triple Talaq, Nikah Halala and and Polygamy respectively. 

  3. Direct the Law Commission of India to publish its report introducing the Uniform Civil Code in furtherance of Article 44 of the Constitution. 


 

Grounds

To uphold public order, morality and health

The petitioner contended that the practices of Nikah Halala and polygamy were in direct violation of Articles 14, 15 and 21 of the Constitution of India, 1950. Their gender discriminatory nature is violative of the Constitution, and can be prohibited as in the practice of ‘sati’

 

Personal laws do not fall under the purview of religion

The petitioner noted that marriage and succession do not fall under religion and therefore cannot be regulated by religious laws. The Court has to examine the validity and reasonableness of the impugned practices keeping in mind change in time, and international law.

 

Further, the setting up of parallel courts under Sharia law by the Muslim Personal Law Board goes agianst the idea of one judicial system for the country. Religious authorities cannot comment on matters of law, which would make Article 44 redundant.