Nikah Halala and Personal Law Reform I

In 2018, Sameena Begum and other Muslim women initiated a Public Interest Litigation (PIL) in the Supreme Court challenging certain Muslim marriage practices and laws, such as polygamy and nikah halala. They are contending that these practices and laws violate Muslim women’s rights to equality, non-discrimination and dignity under Articles 14, 15 and 21 of the Constitution. Further, they are claiming that these customs cause serious socio-economic injury to Muslim women.

The Petitioners are primarily challenging the constitutionality of polygamy and nikah halala. Although some also are seeking the criminalization of various marriage/divorce customs, including triple talaq. So, what are these laws? And why are they only specific to the Muslim community?

• Polygamy – allows for a husband to have multiple wives simultaneously
• Triple talaq – allows a husband to instantly divorce his wife by uttering ‘talaq’ thrice
• Nikah halala – forces a divorced wife to marry another man, before she may remarry her former husband. This is often practiced by women who have been divorced via triple talaq

These customs are codified in the Muslim Personal Law (Shariat) Application Act, 1937. As its name would suggest, the Act applies only to Muslims. In India, each major religious community enjoys its own laws relating to marriage and succession. These are called ‘personal laws’. Muslim personal law is codified in the 1937 Shariat Act.

For a large part of modern India’s history, particularly post-independence, there has been a fierce debate about whether to do away with personal laws. In fact, the Constitution includes a provision for replacing personal laws with a Uniform Civil Code (UCC), which would apply to all persons equally, regardless of their religious background. Proponents of the UCC contend that it would put an end to discriminatory personal laws. On the other hand, those opposing a UCC, argue it would violate the fundamental right to freedom of religion.

In this three-part post, we provide a historical overview of Muslim personal law reform in India, with a focus on the UCC debate. We conclude by examining how this history has informed the primary arguments advanced by the Petitioners challenging nikah halalal and polygamy.

UCC in the Constituent Assembly Debates

After much debate, our Constitution’s drafters concluded that the State should ‘endeavour to secure for the citizens a uniform civil code throughout the territory of India’. This demand on the State to introduce a UCC finds itself articulated in Article 44 of the Constitution. However, Article 44 is only a directive principle – meaning, it cannot be enforced in a court of law. In essence, a citizen cannot approach the Supreme Court (or a High Court) demanding that it direct Parliament (or State Legislature) to enact a UCC.

When Article 44 (Draft Article 35) was being debated by the Constituent Assembly, many Muslim members, such as Naziruddin Ahmad, contended that the UCC violated freedom of religion and would create disharmony within the Muslim community. Further, they argued that reforming personal law required the prior consent of religious communities.

On the other hand, Members in favour of Article 44, asserted that the UCC didn’t violate freedom of religion, as the Constitution provides for social reform legislation. Further, they stressed that the UCC would apply to all religious communities equally and not only Muslims. They asserted that it was necessary to unite Indians under a common civil code. Finally, they observed that Article 44 was only a Directive Principle, meaning that the State didn’t have to bring it into effect immediately, which would allow time for the consent of minority communities to be taken.

Till this the day, the State hasn’t succeeded in obtaining the consent of Muslim communities to introduce a UCC. As journalist Shoaib Daniyal explains, Muslim groups generally view the UCC as a threat to Muslim identity in India. Nevertheless, Muslim personal laws have undergone certain reforms post-Independence. In Part II, we explore some of these major legal developments relating to Muslim personal laws after Independence. Finally in Part III, how these developments have informed Sameena Begum’s Petition.

For more on the Constituent Assembly Debates, visit constitutionofindia.net