The Supreme Court on Thursday said it will set up a new five-judge Constitution bench to hear the pleas challenging the constitutional validity of polygamy and 'nikah halala' among Muslims.
A bench comprising Chief Justice D Y Chandrachud and Justices Hima Kohli and J B Pardiwala was urged by lawyer Ashwini Upadhyay, who has also filed a PIL on the issue, that a fresh five-judge bench was needed to be constituted as two judges of the previous bench have demitted office. Many Muslim women also approached the apex court for banning ‘nikah halala’ after the verdict banning triple talaq. "We will form a bench," the CJI responded. Upadhyay, in his PIL, has sought a direction to declare polygamy and 'nikah halala' unconstitutional and illegal. The apex court had in July 2018 considered the plea and referred the matter to a Constitution bench already tasked with hearing a batch of similar petitions. The apex court had issued notice to the Centre on the petition filed by a woman named Farjana and tagged Upadhyay's plea to a batch of petitions to be heard by the Constitution bench.
The lawyer's petition sought declaring extrajudicial talaq a cruelty under Section 498A (husband or his relatives subjecting a woman to cruelty) of the IPC.
It claimed nikah halala is an offence under Section 375 (rape) of the IPC, and polygamy a crime under Section 494 (Marrying again during life-time of husband or wife) of the IPC, 1860.
The apex court, which on August 22, 2017 banned the age-old practice of instant 'triple talaq' among Sunni Muslims, had on March 26, 2018 decided to refer to a larger bench a batch of pleas challenging the constitutional validity of polygamy and 'nikah halala'. While polygamy allows a Muslim man to have four wives, 'nikah halala' is a process under which a divorced Muslim woman has to first marry another person, consummate it and get a divorce from the second husband, if the couple were to remarry after a compromise. The apex court has already issued notices to the Law and Justice Ministry, the Minority Affairs Ministry and the NCW at that time. Some petitions have also challenged the practices of 'Nikah Mutah' and 'Nikah Misyar'.
