Date of judgement:
The Supreme Court of India
Hon'ble Mr. Justice Dipak Mishra
Petitioner - Sameena Begum
Respondent - Union of India
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.
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.
Click here to download the original copy of the judgement