Supreme Court impleads NHRC, NCW in Muslim personal law case

A five-judge Constitution Bench on Tuesday impleaded the National Human Rights Commission (NHRC), the National Commission of Women (NCW) and the National Commission of Minorities as parties in a batch of petitions challenging the Muslim Personal Law practices such as polygamy and  nikah halala.

The Supreme Court’s Bench led by Justice Indira Banerjee issued notices to the statutory bodies after senior advocate Shyam Diwan, for petitioner Ashwini Kumar Upadhyay, sought their arraignment in the case.

The Supreme Court also issued notice in a separate petition in the batch, which said the personal law practices violated Section 494 of the Indian Penal Code.

The section makes “marrying again during lifetime of husband or wife” an offence punishable with imprisonment up to seven years and fine.

The case will be listed after the Dasara holidays.

Mr. Upadhyay argues that polygamy and  nikah halala (bar against remarriage with divorced husband without an intervening marriage with another man) are unconstitutional.

He has sought a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 violative of Articles 14, 15 and 21 of the Constitution, insofar as it seeks to recognise and validate polygamy and  nikah halala.

The All India Muslim Personal Law Board (AIMPLB) had filed an application in the case, contending that this was a “cultural issue” and inextricably interwoven with the religion of Islam.

The Constitution allowed the continuance of the different practices of various religions until the State succeeds in its endeavour to secure a Uniform Civil Code (UCC), the AIMPLB had said.

It had argued that personal laws do not derive its validity from legislature or any other competent authority. Their sources were the scriptural texts of their respective religions.

The personal law do not fall within the definition of ‘laws’ under Article 13 of the Constitution. The validity of a personal law cannot be challenged on the basis of fundamental rights enshrined in the Constitution.

The Board had argued that the petitions were a push for a judicial pronouncement to bring the Uniform Civil Code.