Justice Markandey Katju on Nikah Halala: The time has come to declare it unconstitutional
- An article by Justice Markandey Katju on Nikah Halala and the Uniform Civil Code
- Nikah Halala, the Constitution, and Equality: Justice Markandey Katju's views
Summary
Former Supreme Court Judge Justice Markandey Katju has demanded that Nikah Halala be declared completely unconstitutional, terming it a violation of women's dignity and equality. In this article, Justice Katju welcomes the recent Allahabad High Court ruling declaring Nikah Halala illegal in a case involving a minor, but asserts that this ban should apply to all cases. He also shares his views based on his judicial experience, touching upon the Supreme Court's verdict on Triple Talaq, polygamy, and the Uniform Civil Code.
Nikah Halaala
By Justice Markandey Katju
Nikah halaala is a barbaric practice among Muslims, allegedly endorsed by the sharia. According to it, if a Muslim woman is divorced by her husband, the two cannot remarry immediately. The woman has first to marry another man, this second marriage has to be consummated, and thereafter only if the second husband divorces her, can she remarry her first husband.
There are reports of scandals of charging money for performing nikah halaala
A division bench of the Allahabad Court consisting of Justices J.J. Munir and Tarun Saxena has recently declared nikah halaala with a minor Muslim girl illegal, being violative of the Prevention of Children from Sexual Offences Act 2012 ( POCSO ).
While this judgment has to be acclaimed as a positive step, I wish that the bench had gone further and had pronounced the barbaric practice of nikah halaala entirely, irrespective of whether it is with a minor or a major Muslim girl, as unconstitutional, being violative of Article 14 ( the right to equality ), Article15 ( the law against discrimination on the ground of gender ), and Article 21 ( the right to life, which has been interpreted by the Indian Supreme Court as the right to live with dignity ) of the Indian Constitution.
While a Judge of the Indian Supreme Court, a case came before my bench where a 34-year-old Muslim man in Odisha, in an inebriated state, pronounced triple talaq to his 32-year-old wife, with whom he had 3 children. Because they were alone, they kept it secret and continued living together with their children. A month later, the wife inadvertently told the incident to a friend, and she in turn told others. The news spread, eventually reaching a local cleric who declared the couple divorced and mandated that they could not live together until the wife underwent nikah halala (intervening marriage). Then a crowd of furious and frenzied Muslims came to the couple's house and demanded that the two should live separately since the wife had been divorced, and they cannot live together unless the woman undergoes nikaah halaala.
No heed was paid to the couple’s fervent plea as to what would happen to their small children if they were made to separate. It was only police intervention that saved the situation from becoming nasty.
When the matter came before my bench in the Supreme Court, I said that it was no one’s business whether the couple lived together or not, and they could not be forced to physically separate or the wife undergo the barbaric nikaah halaala. I also ordered the police to arrest those trying to interfere with the couple’s living together.
I too made the mistake of not declaring the practice of nikah halaala unconstitutional, and till now there is no judgment of Indian Courts outlawing it.
The utterly reactionary All India Muslim Law Board, dominated by bigoted maulanas, has strongly opposed abolishing nikah halaala or polygamy among Muslims by Courts or by legislation
The Indian Supreme Court in Shayara Bano vs Union Of India And Ors. Ministry of Women's case has declared triple talaq by a Muslim husband as unconstitutional.
In my opinion, the time has come when it should also declare nikah halaala and polygamy unconstitutional. India has to be run in accordance with our Constitution, not in accordance with the Sharia/
Feudal practices, among all religions, must be suppressed, and we should have a uniform civil code, as in most modern countries
(Justice Katju is a retired Supreme Court judge and former Chairman of the Press Council of India. These are his personal views.)
