Polity & Governance Prelims cum Mains

After triple talaq, Centre targets nikahhalala and polygamy

The News

  • After moving to criminalise instant triple talaq, the Centre is all set to throw its weight behind a clutch of petitions filed in the Supreme Court to declare nikahhalala and polygamy unconstitutional.

 

News Summary

  • A petition was filed before Supreme Court to declare nikahhalala and polygamy unconstitutional.
  • SC agreed to hear the petitions and issued notice to the Centre and the law ministry. The SC also directed the Centre to respond to the plea seeking to declare the provisions of Muslim Personal Law (Shariat) which validate the practice of polygamy and nikahhalala as unconstitutional.
  • The Centre, after extending its support to petitioners, is gearing up to challenge the two practices.

 

Role of Bharatiya Muslim MahilaAndolan (BMMA):

  • Bharatiya Muslim MahilaAndolan (BMMA), a voluntary organisation which successfully petitioned the SC against instant talaq, has decided to join the petitioners who are seeking an end to nikahhalala and polygamy.
  • BMMA are seeking a comprehensive law regulating all aspects of marriage and family by a Quranic-based law that complies with the Constitution too.

 

Additional information – Some terms

What is nikah?

  • In Islam, marriage or nikah is a social contract between a man and woman, where both sides can stipulate conditions.
  • Both parties need to willingly consent to the marriage, and sign the contract in the presence of witnesses.
  • The marriage contract in Islam is not irrevocable and it can be broken through divorce or talaq.

 

What is polygamy within Islam?

  • Under Islamic jurisprudence, men are permitted, under specific circumstances, to marry up to four wives at one time.
  • Islamic law states that a man can marry more than one woman if he has the financial resources to maintain all wives and their children and behave with complete justice and no favouritism to all.
  • Polyandry, the practice where a woman can have more than one husband, is not permissible.

 

What is Nikah Halala?

  • Islamic law says that a Muslim man can divorce and remarry the same woman twice.
  • However, if the marriage is dissolved for the third time, it will only be ‘halal’ for both to remarry after the wife first marries another man, consummates the marriage and if the other man willingly divorces her or dies.
  • If any step of this process is not observed, the halala is not valid.
  • While defended by the clergy, the practice has been slammed by women’s activists who have called it retrograde and anti-women and have petitioned the SC to get it banned.

 

What is Nikah Mutah?

  • Nikah Mutah refers to a type of temporary marriage practiced by certain sects within Shia Islam where both parties agree to a private and verbal marriage contract.
  • There is no stipulated time for the duration of the ‘marriage’ – it can last from a few minutes to months.
  • At the end of the contract, the wife must observe a period of abstinence known as iddah. Any children born of a Mutah marriage have the same rights as the man’s children from a legal marriage.

 

What is Nikah Misyar?

  • Nikah Misyar is a type of marriage practiced by some sects within Sunni Islam where both parties agree to forego several marital rights such as living together etc.
  • Both parties need to consent to the contract, agree to the amount of mehr, and sign it in the presence of two witnesses.
  • A Misyar marriage contract is not temporary, since there’s no expiry date affixed to it.

 

What is Talaq?

  • Talaq refers to divorce under Islamic law. Under Islamic law, there are three types of divorce: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat.
  • Talaq-e-Ahsan is the most ideal way of dissolving a marriage.
    • ‘Ahsan’ means best or most proper. Under Talaq-e-Ahsan, the husband must pronounce divorce in a single sentence when the wife is in a state of ‘purity’, that is, free from her menses.
    • The wife has to observe a period of iddat, which is usually three monthly courses, after talaq is pronounced. During the iddat period, divorce is revocable.
  • Talaq-e-Hasan, is a ‘proper’ way to divorce but not as good as Ahsan.
    • The husband pronounces talaq three times spread over three monthly courses. The divorce is revocable during those months.
  • Talaq-e-biddat is considered undesirable and a ‘sinful’ in Islam, yet considered valid under Sharia law.
    • This kind of instant divorce is not the norm within Islam, but a rarity.
    • Biddat means sinful innovation. Under this form of divorce, the husband pronounces talaq thrice in one sitting.
    • Divorce is instant and becomes irrevocable immediately when it is pronounced, irrespective of iddat. Thus, once pronounced, it cannot be revoked.
    • The Supreme Court of India, in a landmark 3-2 verdict, “set aside” the centuries-old practice of talaq-e-biddat.

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