Plea Against polygamy: Apex Court Constitution Bench Sought Response from NCW, NHRC, Minorities Commission

Constitutional Bench: Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhuli

The Top Court sought a response from the National Human Rights Commission (NHRC), and the National Commission for Women (NCW), on a plea challenging the practices of polygamy and Nikah Halala among Muslims. A notice was issued to the above commissions and posted the matter for hearing after Dussehra.

The bench is hearing a bunch of petitions challenging the constitutionality of polygamy in Islam, along with other practices like Nikah Halala and Nikah Mutah. Additionally, the petitions question the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act.

Nikah Halala is the practice where once a Muslim woman is divorced by her husband, the husband is not allowed to take her back, even if he pronounces Talaq under the influence of an intoxicant unless she marries another man, who then divorces her, allowing the previous husband to remarry her.

Nikah Mutah means “pleasure marriage”, and is a temporary marriage contract that is practised in the Community. In this type of marriage, the duration of the marriage and the mahr is specified and agreed upon in advance. It is a private contract made in a verbal format. Further, preconditions for Nikah Mutah are: 

• The bride must not be married, 

• must be a Muslim, 

• she should be chaste, and

• not addicted to fornication.

• She may not be a virgin (if her father is absent and cannot give consent).

In the end, marriage ends and the woman undergoes iddah, a period of abstinence from marriage (intercourse). If a girl becomes pregnant during the temporary marriage, the iddah is intended to provide paternal certainty.

Nikah Misyar, “traveler’s marriage” is a form of matrimonial union wherein the husband and wife renounce several marital rights such as living together and the wife’s rights to housing and maintenance money.

Other forms of marriage in Islam require a written declaration of intent to marry and acceptance of the terms. There are no minimum or maximum durations associated with Nikah Mutah or Nikah Misyar.