Allahabad HC issues notice to Attorney General on PIL against Muslim Personal (Shariat) Application Act, Section 494 IPC

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The plea asserts that Polygamy culture violates the fundamental and basic human rights of ladies and exclusion of Muslims from the scope of punishment under section 494 IPC is also a form of discrimination.

The Allahabad High Court recently issued notice to the Attorney General for India in the Public Interest Litigation (PIL) plea filed challenging the validity of the Muslim Personal (Shariat) Application Act, 1937. The plea also sought Section 494 IPC to be declared ultra vires.

The order was passed by the division bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi in the plea moved by Hindu Personal Law Board through its president GS Pawan Kumar Das Shastri.

The petitioner has challenged the provision of the Act of 1937 and Section 494 IPC on the ground that restrictions have been put on  Hindus, Jains, Sikhs and Buddhists against polygamy whereas the same is practiced by the Muslims which is clear discrimination only on the ground of religion.

These discriminatory laws are violative of fundamental rights guaranteed to the citizens by Article 15 of the Indian Constitution, the plea asserted. 

It is to be noted that a batch of similar petitions challenging the constitutional validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, alleging that it is violative of Articles 14, 15, 21 of the Constitution, insofar as it recognizes and validates the practice of polygamy and Nikah-Halala, is pending before the Apex Court. 

The Supreme Court, in the month of January, had said that it will consider constituting a 5 judge bench to hear the matter. 

The petitions before the Top Court have challenged the practice of Polygamy (allowing husbands to have multiple wives), Nikah-Halala (after divorce, a woman has to necessarily consummate another marriage and get a divorce to marry her earlier husband)Nikah mut’ah, and Nikah al-misyar (temporary marriage contracts without marital rights) which have been validated in Section 2 of the Act.

The All India Muslim Personal Law Board (AIMPLB) has also moved an application for impleadment in the matter before the Supreme Court. While referring to Section 29 of the Hindu Marriage Act, 1955, the AIMPLB's application stated that “the laws relating to marriage and divorce of Hindus themselves are not uniform and thus the customs and practices have been protected by the Statute itself by adding Section 29(2) of the Act.” The case of Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461 has been relied on in this regard.

Case Title: Hindu Personal Law Board Thru.G.S.Pawan Kumar Das Shastri v. U.O.I. Thru. Secy. Min. For Law And Justice N.Delhi And Anr.