The AIMPLB has asked that it be added as a party respondent in the petition filed by BJP leader Ashwini Upadhyay seeking that polygamy and nikah halala be declared unconstitutional.

Dont allow person of one religion to question another Muslim Law Board to SC on nikah halala
news Court Monday, January 27, 2020 - 17:36

The All India Muslim Personal Board (AIMPLB) filed an application in the Supreme Court seeking impleadment in the writ petition filed by BJP leader Ashwini Kumar Upadhyay challenging the constitutional validity of nikah halala and polygamy under Muslim personal laws. The AIMPLB has stated in its application to the court that it is a registered society established to protest and preserve Muslim Personal Laws and since the petition raises questions about Muslim personal law, the viewpoint of the AIMPLB should also be considered.

“Since one of the primary objectives of the applicant organization is to take effective steps to protect the Muslim Personal Law in India and to prevent any interference in the observation of the Muslim Personal Law, it wishes to put forth its views before this Hon'ble Court for the adjudication of the questions which have arisen in the present matter,” the AIMPLB’s application states. 

The AIMPLB added that a similar petition had been filed before the Supreme Court in the case of Ahmedabad Women Action Group vs Union of India, and the court had in 1997 examined all the issues mentioned in the current petition. 

AIMPLB has pointed out that the apex court had then declined to entertain the issues observing that these were matters that involved state policies, which the court will not ordinarily have any concern. The AIMPLB also pointed out that the court had stated that these issues are to be dealt with by the Legislature

“...personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts.,” the AIMPLB stated. 

The application added that Mohammedan law was founded essentially from the Quran and the Hadith of the Prophet Muhammad and that it cannot fall within the purview of the expression laws in force, hence its validity cannot be tested on a challenge based on Part III of the Constitution. Part III of the Constitution deals with Fundamental Rights.

The AIMPLB has also added that it is of the view that any person other than a member of a religious denomination should not be allowed to question the faith of another religious denomination. 

The AIMPLB has asked that it be added as a party respondent in the BJP leader’s petition. 

The petition filed by BJP leader Ashwini Upadhyay had sought directions to declare polygamy and nikah halala, the process for a Muslim woman who wants to remarry her divorced husband, as unconstitutional and illegal.

While the practice of polygamy is outlawed in the country, an exemption is provided to the Muslim community under the Muslim Personal Law (Shariat) Application Act, 1937, which paves the way for the implementation of personal law in matters connected with marriage. Similarly, nikah halala is also permitted.

"Petitioner is filing this petition under Article 32 of the Constitution seeking a writ, order or direction in the nature of mandamus to declare polygamy and nikah halala, practised in Muslim community, illegal and unconstitutional for being violative of Articles 14, 15, 21 and 25 of the Constitution," Upadhyay had said in his plea.

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