Nikah Halala and Personal Law Reform III

Read Part I here and Part II here.

After the Supreme Court declared triple talaq gender discriminatory in 2017, various Muslim women filed Petitions challenging polygamy, nikah halala and other related customs. They contended that just like triple talaq, these customs discriminate against women and caused them severe socio-economic distress.

This latest challenge to Muslim marriage customs marks a contemporary iteration of the 74-year old debate about personal laws. Under current law, each major religious community enjoys its own ‘personal laws’ pertaining mainly to marriage and inheritance. One major criticism of personal laws is that they are often gender discriminatory. However, attempts at reform have been resisted and labelled as attempts by the State to interfere in religious matters.

In this three-part series, we place the current legal challenge within its historical context. In particular, we trace how the lead Petition by Sameena Begum responds to and relies on arguments advanced in the Constituent Assembly, and later the Supreme Court.

Sameena Begum Petition

Sameena Begum prayed for the following orders and directions from the Court:

1. Declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 unconstitutional, insofar as it validates polygamy and nikah halala;
2. Criminalise triple talaq, nikah halala and polygamy. Specifically, declare that triple talaq is ‘cruelty’ under Section 498A, nikah halala is rape under Section 375, and polygamy is an offence under Section 494 of the Indian Penal Code, 1860;
3. Direct the Law Commission of India to publish its report on the Uniform Civil Code (UCC)

The second and third prayers require modification, as subsequent to Sameena Begum filing her Petition in March 2018, Parliament criminalized triple talaq and the Law Commission published its reports. Therefore, we will primarily focus on Begum’s first prayer and the grounds she advances to justify it.

Protected under Article 25?

As becomes apparent from reading Begum’s Petition, one of the primary obstacles against reforming personal laws are constitutional protections afforded to them under Article 25. The Constitution guarantees freedom of religion equally to all persons. As the Supreme Court has recognised, personal laws are codified religious customs. Hence, divorce practices such as triple talaq enjoy protection under Article 25.

As we explored in Part I, Members of the Constituent Assembly tabled this very argument when opposing including a mandate for a Uniform Civil Code (UCC) in the Constitution. A UCC would do away with all personal laws.

Ultimately, however, the Constituent Assembly decided to include the UCC in the Directly Principles. Aware of the arguments advanced by Members in favour of a UCC, Sameena Begum contends that personal law reform is required to achieve gender equality, a concept enshrined in Article 14 of the Constitution.

Further paralleling Members of the Assembly, Begum points out that the Constitution allows for social and welfare reform of religious customs. Article 25(2) specifies that nothing can prevent the State from restricting secular aspects of religious customs. When the Assembly was debating personal law reform, those in favour of a UCC pointed to the existence of this very provision. Begum’s Petition borrows this argument, emphasising that Parliament can introduce reforms to secure other fundamental rights.

Moving beyond the Constituent Assembly, her Petition also relies heavily on judicial concepts evolved post-Independence. As established by the Supreme Court in 1954 (Shirur Mutt), only customs that are ‘essential’ to a religion enjoy protection under Article 25. Hence, Begum tries to establish that polygamy and nikah halala are non-essential to Islam. Drawing from the judgments in RA Pathan and Kursheed Ahmad Khan, Begum contends that customs that are merely allowed but not mandated by religious scripture, are not essential.

No Uniform Civil Code

Begum frames her petition against the backdrop of the State’s failure to implement Article 44 of the Constitution – the Uniform Civil Code. As early as 1985, the Supreme Court reflected on the need to institute the UCC in Shah Bano. Nevertheless, as Begum points, the Union has yet to introduce a common civil law.

Begum repeatedly stresses that the Court has made observations similar to those in Shah Bano numerous times. Turning to Praksah v Phulwati, Begum illustrates that the Court even went as far as taking suo motu cognizance of the issue in 2015. In this case, the Court ,of its own motion, instituted a Bench to address gender discrimination faced by Muslim women in marriage and succession.

Ultimately, however, as Begum emphasises, the issue remains unresolved. The suo motu case was tagged to Shayara Bano, where the Court limited itself to deciding the legality of triple talaq. And while the Union did introduce Ordinances criminalizing triple talaq, it never introduced any Bills resembling a UCC. There remains no legal recourse for Muslim women who are stuck in polygamous marriages or are divorced via nikah halala.

Notably, Begum doesn’t include the above in her Petition in order to convince the Court to direct Parliament to introduce a UCC. This is of course beyond the Court’s powers. Instead, Begum primarily uses the above to convey a sense of urgency. For over 30 years, the State has done little to reform discriminatory personal laws, despite repeated recommendations of the Court.

Begum’s Petition has the potential to bring about substantial personal law reform. As already established, the Supreme Court has become open to subjecting personal laws to judicial review. It only reinforced this with its 2017 Shayara Bano judgment, where it established it was willing to use its vast powers under Article 142 to push through reform. Furthermore, the BJP-led Government has repeatedly said it wants to reform Muslim personal laws. Given all this, Begum’s Petition may kickstart a substantial overhaul of the these laws.