The All India Muslim Personal Law Board (AIMPLB) has moved the Supreme Court seeking to be made a party to a petition challenging the practices of nikah halala and polygamy that are prevalent in the Muslim community. In its plea, the AIMPLB has said the practices involve personal laws derived from religious scriptures and cannot be challenged.
Polygamy is outlawed in India but an exemption has been made under the Muslim Personal Law (Shariat) Application Act, 1937. The law provides for the application of Muslim personal law in matters related to marriage, succession etc. The practice of nikah halala is also permitted.
In its plea submitted last week, the AIMPLB said its primary objective is to protect the Muslim personal law and prevent any interference in their observation and, as such, it should be made a party to the case.
BJP functionary Ashwini Kumar Upadhyay has filed the plea challenging the practices.
“The foundational sources of personal laws are their respective scriptural texts. The Mohammedan law is founded essentially on the Holy Koran and the Hadith [sayings] 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 of India and hence its validity cannot be tested on a challenge based on Part III of the Constitution,” the AIMPLB said in its plea.
Article 13 lays down that laws in force in India shall be void to the extent they are in violation of fundamental rights under Part III of the Constitution.
Upadhyay’s petition has challenged the practices saying they violate fundamental rights enshrined in the Constitution’s Articles 14, 15 and 21.
“Personal laws of Muslims derive their validity from Muslim Personal Law (Shariat) Application Act, 1937. It is, therefore, a law under Article 13 and is bound by Part III.
