The SC noted that the five-judge bench which examined instant triple talaq – and pronounced their order in August last year had kept open the issues of polygamy and ‘Nikah halala’.
Nikah Mutah and Nikah Misyar, literally means pleasure marriage is a verbal and Temporary marriage contract that is practiced in Muslim Community, in which, duration of marriage and the mahr is specified and agreed upon in advance. It is a private contract made in a verbal format. Preconditions for Nikah Mutah are: The bride must not be married, she must be Muslim, She should be chaste and not addicted to fornication. She may not be a virgin, if her father is absent and cannot give consent. At the end of contract, marriage ends and women undergo iddah, a period of abstinence from marriage (intercourse). The iddah is intended to give paternal certainty to any child/girl if she becomes pregnant during the temporary marriage. It is pertinent to state that a written declaration of intent to marry and acceptance of the terms are required in other forms of marriages in Islam.
Generally, Nikah Mutah and Nikah Misyar have no proscribed minimum or maximum duration. However, the Oxford Dictionary of Islam, indicates the minimum duration of the marriage is debatable and durations of at least three days, three months or one year have been suggested.
Many Islamic scholars have already said that Mutah and Nikah Misyar are forbidden and void in Islam and its nothing but a religiously sanctioned rape. Undoubtly, these practices are not only violative of Articles 14, 15 and 21 of the Constitution but also injurious to public order, morality and health.
The bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said a fresh five-judge constitution bench would be set up to deal with the constitutionality of ‘Nikah halala’ and polygamy.
A three Judge Bench of the Supreme Court agreed to hear the petitions challenging the Constitutional validity of Polygamy and Nikah-halala among Muslims.
Significantly, referring the matter to a Constitution bench, the CJI led bench issued notice to Union of India and Ministry of Law and Justice
The counsel for petitioners submits that the challenges in these petitions pertain to prevalent practice of Polygamy and Nikah Halala arguing that they are unconstitutional. Various grounds have been cited in support of their stand on these two practices. They contend that these two practices cannot be permitted under the Constitution. It is contended by them that the Constitution Bench in the triple talaq matter had not dealt with these two issues and kept them open. On a perusal of the judgment finds it is correct. They also contend that these two issues also should be dealt by a Constitution Bench.
The bench also directed that a copy be served on the Central Agency.
The bench however refused to issue notice to Law Commission who were made parties in all petitions.