Plea in Supreme Court seeks declaration that bigamy is unconstitutional for people of all faiths

India Legal — Fri, 04 Dec 2020 09:29:26 +0000

A petition has been filed in the Supreme Court seeking a declaration that the practice of bigamy is unconstitutional for all religions, oppressive towards women and opposed to equality.

The petition has been filed by five individuals through advocate Vishnu Shankar Jain under Article 32 of the Constitution of India to declare that bigamy has been made applicable in India by Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 is ultra vires to Article 14 of the Constitution of India and by virtue of Article 13(1) of the Constitution.

According to the petition, “The second marriage solemnised by a Hindu, Christian or Parsi during the lifetime of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if contacted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”

Section 494 protects bigamous marriage among Muslim men since their personal law gives sanction for such marriages and it is the Muslim personal law which governs Muslims in matters of marriage and divorce due to Section 2 of the Muslim Personal Law (Shariat) Application Act,1937, claimed the petitioner.

“The Muslim Law even though permits male persons to have four wives at the time but at the same time para 256 (as per Mulla Muhammdan Law) forbids the female to contact another during the lifetime of her husband,” the plea reads.

The petitioners alleged that Section 494 discriminates “only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”

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“Penal action cannot be differentiated on the basis of religious practice and penal law has to be made applicable uniformly having no relation with personal law applicable to the offender,” the petition states.

Private Properties of a Ruler by an Agreement of Accession to be governed by Personal Laws: SC

India Legal — Wed, 31 Jul 2019 13:57:25 +0000

A bench of the Supreme Court headed by Chief Justice Ranjan Gogoi, while dealing with the question whether succession to the properties declared by an erstwhile ruler to be his private properties in the agreement of accession with the Dominion of India will be governed by the rule of succession applicable to the “Gaddi’ or by the personal law applicable to the ruler held that the personal law of the ruler will be applicable in such cases.

Nawab Raza Ali Khan was the ruler of Rampur who signed a merger Agreement with the Union of India in 1949. As per the agreement he was entitled to the full ownership, use and enjoyment of all the private properties owned by him and was to submit an inventory of all the immovable properties to the Dominion. He was declared to be a ruler under Article 366(22) of the Indian Constitution. He died in 1966 intestate.

After the death of the Nawab, the President of India recognized his eldest son Nawab Syed Murtaza Ali Khan as the ruler. By a certificate the new ruler was recognized as the sole successor of all the private properties of the Late Nawab which was challenged by other successors.

The plaintiffs in this case – Talat Fatima Hasan v Nawab Syed Murtuza Ali Khan – argued that the properties declared by the Nawab to be his private properties in terms of the merger agreement were his private properties and all legal heirs were entitled to a share in the property as per the personal law. Whereas the defendants contended that the property was not the private property of the Nawab but was attached to the “Gaddi” of the state of Rampur and therefore it was governed by the law of succession which was admittedly applicable to the rulership of Rampur which was the rule of male lineal primogeniture which meant that the senior-most male heir takes everything to the exclusion of all others.

The Court observed “the definition of ruler in clause (22) of Article 366 of the Constitution itself shows that the person who is defined as ruler is a former prince, chief or other person, who was, on or after 26.01.1950 recognised as a ruler having signed the covenant of accession. Necessarily, the ruler was a person who was recognized before independence by the British crown and was the sovereign of his state. Such person, though defined as a “Ruler” has no territory and exercises no sovereignty over any subjects. He has no attributes of a potentate nor does he enjoy all the powers and privileges which are normally exercised by a potentate.”

The Court has directed the trial court to appoint a Commissioner to divide the property as per the Shariat Application Act, 1937.

–India Legal Bureau

Shariat Application Act – India Legal

Plea in Supreme Court seeks declaration that bigamy is unconstitutional for people of all faiths

Private Properties of a Ruler by an Agreement of Accession to be governed by Personal Laws: SC