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The Challenges SC Will Face While Reviewing Petitions On Banning Polygamy And Halala

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The Supreme Court of India, in its historic judgment delivered last year on August 22, had struck down the unilateral, discriminatory and antiquated practice of triple talaq. Internal voices among Muslims welcomed the SC move with women hailing the verdict as historic and progressive. The apex court had ruled that triple talaq was null and void as it defied gender justice and Constitutional morality. The Court had relied heavily on Quranic injunctions and drew parallels from Muslim countries that had already done away with this arbitrary method of divorce.

The new petitions in the Supreme Court against Nikah Halala, Nikah Mutaa, Nikah Misyar, and polygamy are, however, different from the previous batch of petitions in a number of ways. The apex court, in the abolition of triple talaq, had the extensive support of Muslim women, the ruling BJP, the ruling party patron RSS, non-Muslims, and liberals worldwide. The ruling had unnerved the defiant All India Muslim Personal Law Board (AIMPLB) which had allowed or rather, forced judicial intervention in a case which was intensely religious.

The Muslim Board disgraced Islam and Muslims in order to protect the sanctity of Hanafi Jurisprudence. The Board, will again, have a tough time in the court defending a demeaning practice, Halala. Halala is an arranged, temporary sham marriage which is carried out, when one believes that three talaqs delivered in one go are valid and will lead to the abrupt termination of the alliance, in order to make the divorcee wife lawful for her previous husband.

The Larger Picture

The Supreme Court, on March 26, referred a clutch of petitions, filed by individuals such as Ashwini Kumar Upadhyay, advocate and BJP leader, seeking abolition of practices, prevalent in some sections of the Muslim society, such as Halala, Mutaa, Misyar and polygamy to a Constitution Bench.

Mr. Upadhyay challenged the provisions of Muslim Personal Law (Shariat) Application Act, 1937, on the grounds of equality, justice, and dignity for women. He claimed that Halala and polygamy violated the fundamental rights of Muslim women which are enshrined in Article 14 (Right to Equality), Article 15 (Prohibition of discrimination on any ground) and Article 21 (Right to Life) of the Constitution of India.

The Likely Face-off Between Various Sections Of Muslims And The Constitution Bench

The Supreme Court will face no formidable hurdles in resolving the fate of Halala. This is because of the following reasons: the need of intermediary marriage hinges on the validity of triple talaq in quick succession that has already been struck down by the court leading to an ostensible slump in the number of Halala cases; the growing awareness among Indian women against this malpractice where they are abused sexually and emotionally in the name of religion; there is no theological basis for this exploitative and obsolete practice and strict warnings of the Prophet against those who indulge in this practice. I will briefly provide few dictates of the Prophet which are enough to make one feel abhorrence for this practice: The Prophet stated, “Allaah has cursed the muhallil (the one who indulges in this disgraceful act) and the muhallal lahu (for whom this is performed).” The Prophet also proclaimed, “Shall I not tell you of a borrowed billy-goat (a man who’s paid for sex).” They said, yes. He said, “He is al-muhallil. May Allaah curse al-muhallil and al-muhallal lahu.” The Second Caliph Umar argued in favour of stoning to death the one who indulges in the commission of Halala.

Despite all these warnings and a near consensus of a majority of Muslim jurists on the abomination of this practice, the Hanafi School of Thought still considers it lawful. This clause will lead to a face-off between this School and the Constitution Bench.

Apart from Halala, the top court will have a similar confrontation with the Shia sect of Islam that views Mutaa as permissible and allows its practice even today. Nikah Mutaa involves a man who marries a woman for a specific length of time in return for a particular amount of money.

Mutaa was lawful in the early period of the Prophet Muhammad till he pronounced it unlawful during the battle of Khaibar in seventh Hijri or AD 629.  Ali told Ibn Abbas that during the battle of Khaibar the Prophet forbade Mutaa and the eating of donkey’s meat. Scholar Imam Nawwi argued that after Eighth Hijri, Mutaa was forbidden for forever. The majority of Muslim scholars have a consensus on its unlawfulness. Qazi Ayaz said that the whole Muslim community has reached on a consensus in declaring this marriage as unlawful except some sects of Shiite.

In the light of foregoing compelling arguments against Mutaa, the Shia sect of Islam will find it hard to justify it.

On the other hand, when the Supreme Court takes up the case of polygamy for constitutional scrutiny, it will not likely find an ally in any section of the Muslim community as the issue has legal sanctity in Islam.  The Verse (4:3) explicitly endorses the sanctity of polygamy though with certain riders such as maintaining absolute justice between two wives. The entire Muslim community has a consensus on the legality of the polygamy with no differing views. A tiny minority of Indian Muslim women who are feminists and view justice through the gender and constitutional prism may likely cheer the apex court if the latter outlaws it.

The likely challenges, the SC Bench will face in testing the polygamy, are as follow: the practice has Divine approval and no theological difference has ever been registered against it, Muslims are not the only community which is polygamous in India. A study conducted in 1974 revealed that the Muslims were found to be the least polygamous with the 5.7 polygamy rate when compared with other sections such as tribals with 15.2, Buddhists with 9.7, Jains with 6.7, and Hindus with 5.8 polygamy rate. There are very few Islamic countries which have sought to ban it such as Tunisia and Turkey. Majority of Muslim countries have, at best, tried to regulate or circumscribe the inimical effects of it falling short of flouting the Divine dictum which is explicit in the Quranic endorsement of the practice. The practice, however, does not form an essential part of Islam.

Nikah Misyar

This is a new notion alien to Indians and is practised by some Arab men. Misyar is a marriage of convenience in which a couple agrees on certain conditions such as a woman renounces some of the basic rights such as accommodation and maintenance which she is otherwise entitled under the marriage contract and the husband visits her once a week or visits her during the day or takes her on a business trip.

This marriage is often done with a woman who is financially independent and does not need a husband for her material needs. Some Muslim jurists argue that this sort of marriage is lawful and far better than having extra-marital affairs as Islam does not sanction sex outside marriage.

The Jurists who view Misyar as lawful are Shaykh Ibn Baaz and Shaykh ‘Abd al-‘Azeez Aal al-Shaykh. They argue that if a marriage fulfils all the required conditions, such as consent of the couple, an announcement of the marriage, the presence of the guardian from the woman’s side and two witnesses and wedding feast known as waleema, then the marriage stands as legal and lawful. Shaykh Ibn ‘Uthaymeen earlier recognized its validity but later retracted from his earlier position in view of its misuse. Shaykh al-Albaani, a prominent Islamic scholar, has, however, argued against it and disallowed it on two grounds: a husband, in this marriage, does not repose or stay with his wife and his unavailability will have an adverse impact on the upbringing of his children.

In view of the differing positions of Muslim scholars in the case of Misyar, the SC bench will be tested for its ability to navigate the different positions of Islamic scholars in the contentious practice known as Nikah Misyar.

India is a country driven by the judiciary with the Supreme Court being the last ray of hope. Given the respect the apex court enjoys in India, it will be an uphill task for the Bench to navigate between Constitutional rights of Muslim women and sentiments of the conservative Muslim clergy. In my view, the apex court will do better in staying away from Nikah Misyar and polygamy and striking down the Halala and Mutaa which have no basis in Islam and are outrightly discriminatory in nature.

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