On Monday, 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, headed by Chief Justice Dipak Misra, while issuing a notice to the Centre on four petitions filed by Sameena Begum of Delhi, BJP leader and social activist Ashiwini Kumar Upadhyaya and two others, referred the matter for adjudication by a Constitution Bench.
The practice of "Nikah Halala" requires the divorced woman to marry someone else, consummate the marriage and then get a divorce in order to again marry her first husband under the Muslim personal law.
According to a report in The Indian Express, a petitioner, who claimed to be a victim of such practices, contended that the Muslim personal law rendered Section 494 (marrying again during the lifetime of husband or wife) of the IPC inapplicable to Muslims and no married woman from the community can file a complaint against her husband over bigamy. The five judge constitution bench headed by Chief Justice J.S.Khehar (since retired) by majority judgment in 2017 had said: "Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case (and, in the other connected cases), at the very outset, it was chose to limit the instant consideration, to "talaq-e-biddat" - triple talaq".
The bench was hearing at least three petitions including some PILs challenging the practices of polygamy and nikah halala on various grounds including that they violate Right to Equality and gender justice.
"Banning polygamy and "nikah halala" is the need of the hour to secure basic rights for Muslim women". The court also sought responses from the Law Commission and the Centre. To this extent, the petitioners even challenged the validity of Dissolution of Muslim Marriages Act 1939 as unconstitutional. She is also needed to observe a particular amount of separation period called Iddat before re-marrying her previous husband.
"Other questions raised in the connected writ petitions, such as, polygamy and nikah halala (-and other allied matters), would be dealt with separately". The petitioners were represented by Senior Advocates Mohan Parasaran, Sajan Poovayya, V.Shekhar and Advocate Gopal Sankaranarayanan. Nikah Mutah is a temporary marriage contract the validity of which must be decided in advance.
He said that a man "by considering the woman an object of man's desire" and by practising "nikah halala, nikah mutah, nikah misyar and polygamy causes gross affront to the dignity of women".