Sameena Begum vs Union of India: The SC Declared The Practices Of Polygamy And Nikah Halala As Unconstitutional And Violative Of Fundamental Rights Of Muslim Women


Court :
The Supreme Court of India

Brief :
The Section 2 of the Muslim Personal Law Application Act, 1937, was found arbitrary and violative of Fundamental Rights guaranteed under Part 3 of the Indian Constitution under Articles 14, 15 and 21. Also, it was found to be injurious to public order, morality, and health, to that degree as it pursues to recognize and validate the evil practice of ‘Polygamy’ and ‘Nikah-Halala’. Hence the practices of ‘Polygamy’ and ‘Nikah-Halala’ were declared unconstitutional.

Citation :

Date of judgement:

09.3.2018

Court :

The Supreme Court of India

Bench:

Hon'ble Mr. Justice Dipak Mishra

Parties:

Petitioner - Sameena Begum
Respondent - Union of India

Issues

  • Whether Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 is constitutional or not.
  • Whether the practices of Polygamy and Nikah-Halala inconsistent with Fundamental rights guaranteed under Part 3 of the Indian Constitution or not.
  • Does the India Constitution has primacy over the Common Laws and Personal Laws.
  • Can some actions that are Offences under the IPC be allowed for specific groups or communities, if their Personal law does not discourage such actions.

Facts of the case

  • The petitioner in this Petition, filed the petition under Article 32 of the Indian Constitution, in the nature of a PIL, being the victim of polygamy herself and also motivated by the problems faced by thousands of Muslim women across India suffering due to these harsh and severe practices of ‘Polygamy’ and ‘Nikah- Halala’ that are widespread in the Muslim society.
  • The Petitioner got married in 1999 to Mr. Javed Anwar. Later, two sons were born out of the said marriage. When she was at her marital home, she was tormented, harassed, beaten, and was asked to bring cash from her parent's house. After the recurring tortures, she filed a complaint under Section 498 A of the IPC. Angered with this, petitioner’s husband sent a memo giving her ‘Triple Talaq’.
  • The Petitioner resided with her parents till she was married again in 2012 to Mr. Riyaz, who was already married before and had another wife. The petitioner got pregnant again and shortly after the birth of her third son, she was given ‘Triple Talaq’ over phone. Ever since, she is living alone with her three children. Aggrieved by her own situation and of many other Muslim women throughout the country, the petitioner came before this Court praying to pronounce practices of ‘Polygamy’ & ‘Nikah Halala’ violative of the basic rights protected under Part III of the Indian Constitution.
  • India identifies a plural legal system, where different religious groups are allowed to be governed by distinct personal laws. It is accepted, that there could be no argument that distinct religious groups can have different laws, but the said Personal Laws must meet the test of constitutional validity and constitutional decency, in as much as, they cannot be violative of Articles 14, Article 15, and Article 21 of the Constitution.

Petitioner’s contentions

  • The Petitioner's council submitted that she has no personal interests, personal gain, secret motive, or implicit reasons in filing this petition. It is not driven by gain of any other individual, institution or body.
  • The council for the Petitioners also referred to the case of Shayara Bano Vs. Union of India1, in which, the Supreme Court declared the custom of Triple Talaq as unconstitutional by a majority of 3:2 ratio as it was held to be violative of Article 14, 15, and 21 of the Indian Constitution.
  • It is further submitted by the Council that Muslim Marriage Dissolution Act, 1939 provides nine grounds for termination of marriage, but there is no required pre-condition for marriage. There is also no prerequisite whatsoever, for Muslim husband that the consent of the first wife is to be taken before executing another marriage. As a result, Muslim male is out of horizon of the offence of Polygamy.
  • The Petitioner also claimed that the evil practices such as Triple Talaq, Polygamy and Nikah Halala are violative of Fundamental Rights guaranteed under Part 3 of the Indian Constitution.


Respondent’s contentions

  • The council for the respondent claimed that the practices of ‘Polygamy’ and ‘Nikah-Halala’ were validated by Muslim Personal law and are considered as ancient customs of the community hence, it shall not be meddled with in the court.
  • The Muslim Personal law have different practices and provisions when it comes to laws relating to Marriage, succession, adoption, maintenance, divorce etc.
  • Article 25 of the Indian Constitution states that all individuals are equally eligible for freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality, and health. Such practices shall be protected under Article 25 of the Indian Constitution.
  • If the Court interferes with the Provisions of Muslim Personal Laws, it will violate Article 15 of the Indian Constitution which states that the State shall not deny any person equality before the law or the equal protection of the laws within the territory of this country. Article 15 secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth.

Judgement

The Section 2 of the Muslim Personal Law Application Act, 1937, was found arbitrary and violative of Fundamental Rights guaranteed under Part 3 of the Indian Constitution under Articles 14, 15 and 21. Also, it was found to be injurious to public order, morality, and health, to that degree as it pursues to recognize and validate the evil practice of ‘Polygamy’ and ‘Nikah-Halala’. Hence the practices of ‘Polygamy’ and ‘Nikah-Halala’ were declared unconstitutional.

Relevant Paragraphs

Matters of faith and belief are safeguarded by the Article 25 of the Indian Constitution but the laws concerning marriage, divorce, inheritance, and succession are liable to be examined on grounds of public order, morality, and health, as well as, on the hallmark of the other provisions of Part III of the Indian Constitution.

The Indian Constitution envisions a secular society. Article 44 (Mentioned in the Directive Principles of State Policy) of the Constitution of India stipulates that the State shall strive to ensure for the citizens a Uniform Civil Code throughout the country. To be treated equally before law and get equal protection of law (Article 14: Right to Equality) is a treasured right of every person under the Constitution of India.

As per Article 13 of the Indian Constitution, all laws in force or to be made must be in line with the Provisions of Part III on Fundamental Rights and law includes any custom, or tradition, or usage which has the force of law in India. Thus, matrimonial laws also must not be violative of or inconsistent with the fundamental rights, particularly the Articles 14, Article 15, and Article 21.

In the landmark case of Khursheed Ahmad Khan versus State of U.P.2, it has been held by this Court that even though the Personal Laws of Muslims allows having as many as 4 wives, but it cannot be argued that having more than one wife is a part of religious practices. Neither is it made mandatory by religion nor is it a matter of ethics. Any law in favour of monogamy does not meddle with right to profess, practice, or propagate religion and does not entail violation of Article 25 of the Constitution of India or any other Fundamental Right.

It is also stated that as per the understanding of Article 21 of the Constitution (right to live a decent life and right to live with dignity), the practice of Polygamy will also not stand its rigorous test.

The practices of Triple Talaq, Polygamy, and Nikah-Halala are discriminatory and violative of the Articles 14, 15 and 21 of the Constitution of India and injurious to public order and morality also. Thus, can be supplanted by the State just as it prohibited human sacrifice or practice of sati in certain Hindu communities. Triple Talaq, Polygamy and Nikah Halala are offences under Sections 498A, 375 and 494 of IPC, respectively. Nevertheless, Executive is inactive in this regard. Hence, this writ petition is in larger public interest.

The Laws dealing with marriage and succession are not a part of religion, and are subject to change with time, and international agreements and treaties could be referred to examine their validity and fairness.

This Court in Triple Talaq Case has held that traditions permitted or not forbidden by religion do not become a religious practice or a constructive principle of the religion and an immoral practice does not obtain the sanction of religion simply because it has been in practice for a long time.

It is further submitted that the inability to safeguard the same equal rights and life of dignity for Muslim women contravenes their most basic human rights and fundamental right to life of dignity unblemished by gender discrimination, which surely have a serious influence on their social and economic rights as well.

The freedom guaranteed under Article 25 (Freedom of conscience and free profession, practice, and propagation of religion) of the Constitution is not at all absolute and, in terms of Article 25(1), “subject to public order, morality and health and to the other provisions of this Part”. It is submitted that a harmonious reading of Part III of the Constitution clarifies that the freedom guaranteed by Article 25 is subject to the fundamental rights guaranteed by Articles 14, 15, and 21.

The Fundamental rights guaranteed in Part 3 of the Indian Constitution are supreme and have dominance over any Personal Laws. Hence, this Supreme Court may declare that “Nikah-Halala is Rape under Section 375 and Polygamy is an offence under Section 494 of IPC”.

The actions of religious groups, bodies and leaders that permit and propagate practice of Triple Talaq, Polygamy and Nikah-Halala must be proclaimed unconstitutional and an offence under the Indian Penal Code.


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Ishaan
on 03 May 2021
Published in Others
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