Court can’t look into validity of polygamy and Nikah Halala, Jamait tells SC

New Delhi: The Jamait Ulama-i-Hind on Wednesday said that practice of Nikah Halala and polygamy were matters of Muslim personal law and courts could not examine their constitutional validity on the grounds of being violative of the fundamental rights of Muslim women.

Seeking to be impleaded in the hearing of the challenge to the practice of polygamy, ‘nikah halala’ (setting a condition for remarriage of a divorced couple), ‘nikah mutah’ and ‘nikah misyar’ (temporary or short-term marriages among the Shia and Sunni sect respectively) amongst Muslims, the Jamait has contended that the issue has already been decided by the top court where it said that personal laws fell within the domain of legislature and can’t be looked into by the courts.

Hearing a challenge to these practices on the basis of their constitutional validity, the apex court by its March 26 orders had said the matter would be heard by the constitution bench. While referring the matter to the constitution bench, and sought the Central government’s response.

The petitioners who have challenged the practices, which come within the domain of Muslim personal law, were not immune from judicial review under the Constitution.

The Jamait has contended that personal laws do not derive their validity on the ground that they were enacted by a legislature or other, but the “foundational sources” of Muslim Law is Holy Koran and the Hadith of the Prophet Mohammed and thus it cannot fall within the purview of the expression “laws in force” as mentioned in Article 13 of the Constitution.

Hence its validity cannot be tested on the grounds of being violative of fundamental rights, it argued.