BJP leader and lawyer Ashwini Kumar Upadhyay and three others with Muslim names had filed a petition seeking to declare the practices of polygamy and nikah halala among the Muslim community, as illegal and unconstitutional.
With the three-judge bench headed by Supreme Court Chief Justice Dipak Misra referring the matter to a Constitutional bench, the planned move to decimate the Muslim Personal Law which has been in existence in the country since 1937, is moving towards a crucial phase. The apex court itself had observed during the Shah Bano case in 1985 the need to implement a Uniform Civil Code instead of personal laws that have been allowed by the Constitution for the different religious communities. A group of secularists and the Sangh Parivar have been voicing their demands based on this. During the 2014 general elections, the BJP in their election manifesto had pledged to implement a Uniform Civil Code in India if and when the party came to power. And when Narendra Modi took charge as the Prime Minister, frantic efforts started in that direction. The 21st Law Commission of India headed by Justice Balbir Singh Chauhan releasing a detailed questionnaire and seeking a reaction from the different outfits and the people were part of those moves. The All India Muslim Personal Law Board (AIMPLB) which is aware of the hidden tactics boycotted the entire questionnaire. All the Muslim organizations shared the same sentiments about the need to strongly resist the move to forcefully impose Hindutva religious practices through the backdoor on all religions of the country with all the might. Secular parties that advocated Uniform Civil Code on their own not only refused to back the new move but also openly opposed it. Later, while speaking to a prominent media house last year end, Law Commission Chairman Justice B S Chauhan, made it indisputably clear that implementing a Uniform Civil Code was impossible in India. Chauhan who pointed out that it was not even an option, also clearly stated that personal laws which were part of the religious freedom guaranteed by Article 25 of the Constitution, can never be brushed aside.
The anti-Triple Talaq Bill presented in the Parliament after the verdict of the Supreme Court Constitutional bench on August 2017 which made triple talaq invalid and illegal, was part of a clever ploy by the Modi government and the Sangh Parivar who realized that it was not easy to implement their agenda. The Triple Talaq Bill which was introduced in the Lok Sabha by the Law Minister portrayed the Bill as a means of emancipation for the Muslim women who undergo harassment and misery. Though the government succeeded in passing the Bill by taking advantage of the laxity of the Opposition, the Opposition refused to pass the Bill in the Rajya Sabha after noticing serious flaws in it. When the stalling of the House sessions continued for days, there was no choice but to refer the Bill to the select committee. In reality, there was no need of such a Bill at all. This is because given the fact that the Supreme Court has made Triple Talaq invalid, what remains is single Talaq. And nobody has a dispute on single pronouncement of Talaq being legal and valid according to the Muslim Personal Law. As stated in the provisions in the Bill, nobody benefits from the three-year imprisonment of the person who uttered triple talaq. He is likely to be stern in his stance of divorce even when he is released from jail. The maintenance of children, as per the law, is his responsibility as well.
It is in this backdrop that petitions pleading for ban on polygamy and temporary (muta'a) marriages have been filed in the Supreme Court. If these pleas - filed by BJP's nominees - are granted and the Constitutional Bench of the Supreme Court declares the customary marriages of the kind mentioned as prohibited, as it happened in the case of triple talaq, the next subject to be considered will be woman's right to property. The practice of muta'a marriage is something followed by only a section of Shias. Nikah halala is the name of a ludicrous practice of bringing a surrogate husband who divorces a woman after a nominal marriage, to circumvent the prohibition of a woman's re-marriage with a former husband after his declaring divorce three times. This practice, which the Prophet himself had declared it as cursed, is not accepted by the Muslim community. As for polygamy, most well-known scholars have termed it as an unavoidable concession granted in special circumstances. As with any other legislation, this law may also be subject to misuse. However, studies in the past have shown that polygamy in actual practice is actually prevalent more in those communities for whom it is entirely prohibited. The secular democratic society should see through the planned attempts to annihilate personal laws that form an integral component of religion. These attempts are made under the cover of social malpractices elimination of which should be achieved through extensive awareness creation and legal reforms. On one hand when anti-women concepts like ill omen in horoscope and ban on remarriage of widows continue without let or hindrance eyes are closed against them, and on the other there is aggressive rush to deny even the constitutional rights of minority communities. Let the conscientious judge how fair this is.