Posted in Critical Analysis, Personal Laws

A case for a BAN ON POLYGAMY in India after the Landmark Triple Talaq Judgement

The Supreme Court of India on March 22, 2017, made a mark in history by declaring the practice of Triple Talaq as unconstitutional by 3:2 majority. The court said that it violates the fundamental rights of Muslim women as it irrevocably ends a marriage and is against the basic tenets of Qur’an. This judgement opens the door for challenging Polygamy on the basis of its being arbitrary, unilateral, and unconstitutional.

Sec 494 of the Indian Penal Code, 1860 outlaws polygamy but since the examination of personal laws is a pre-requisite to the applicability of this section, it is legal in the Muslim community as Islamic law allows polygamy for men (only in exceptional conditions) and imposes monogamy on women. Verse 4:3 of the Quran says that,

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]

In the pre-Islamic era, men were entitled to have more than one wife. One must not forget the significance of the period and the circumstances in which verse 4:3 was revealed allowing men to marry up to four wives; the battle of Uhud took a heavy toll on men, leaving a large number of widows and orphans. The multiplicity of wives became a social necessity and in verse 4:3 which was revealed after this great battle, the Holy Prophet, allowed polygyny but under the strict injunction that all the wives must be treated with perfect equality. Many Classical jurists interpret the last portion of the verse to mean that polygamy should be restricted as The Quran states in the same chapter that it is not possible to be equitable and fair in these situations; “Ye are never able to do justice between wives even if it is your ardent desire

It is a well-known jurisprudential rule in Islam, that “verses in the Qur’an explain each other,” i.e., the Qur’an is an integral whole and thus the full and proper meaning of any verse cannot be understood in isolation from other verses in the rest of the Qur’an. We can thus logically conclude that a man should marry only one wife. Therefore, the general belief that under Muslim Law, a husband has an unfettered right to marry again even where his earlier marriage is subsisting is egregious and baseless. This is clearly a manifestation of how patriarchal interpretation can prevail over reason and gender equity.

Polygamy clearly violates Article 21 of the Indian constitution as the Right to Life also includes the right to live with dignity. As far as Indian Judiciary is concerned, a catena of Indian case laws suggests that the touchstone of judging laws on polygamy can be our own constitution. In Javed v. The State of Haryana, the court held that “Polygamy is injurious to public morals and can be superseded by the state just as the practice of Sati.”

The flag bearers of Polygamy have contended that banning polygamy would be in violation of Article 25 of the Indian Constitution which guarantees Freedom of conscience and free profession, practice, and propagation of religion. While interpreting the right to Religious freedom, Judiciary takes into consideration the essential religious practices and not the non-essential ones.  Judicial decisions have made an attempt to make a distinction between ‘essential’ and ‘non-essential’ religious practices. In the recent judgement of the Supreme Court in the case of Khursheed Ahmed Khan v. State Of U.P. & Ors , the honourable court reproduced the 1952 judicial precedent in the Narasu Appa Mali case;

“Sharp distinction must be drawn between religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give away before the good of the people as the State as a whole”

There can be no denying of the fact that Polygamy is an anathema to women’s economic, social and emotional well-being and hence, it is clearly opposed to Public order and morality. It is, therefore, safe to conclude that any law in favour of monogamy does not interfere with to right to profess, practice, and propagate religion and does not involve any violation of Article 25 of the Constitution.

Indian Judiciary through its various judgements has made it clear that Polygamy is an inhumane practice which should be eradicated from the society to restore the dignity of Muslim women and achieve the goal of gender justice. The legal reform in personal laws has been one of the critical and yet neglected areas in the Indian Democracy. Muslim women are denied their legal rights in the personal realm despite various rulings of The Supreme Court and various high courts which have declared the practice of Polygamy as unconstitutional. Practices such as polygamy persist in our society despite there being no sanction on these in the Quran.

It is extremely significant to note that a large no. of Muslim countries or countries with a large Muslim population have undertaken significant reforms in marriage and divorce laws. As per the Indian Law Commission’s report, bigamy has been fully abolished or severely controlled by law in most Muslim countries of the world. Turkey and Tunisia have completely outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan and Bangladesh; it has been subjected to administrative or judicial control. It is now India’s turn as the World’s largest democracy to put a complete ban on polygamy, thereby ensuring dignity and gender equality to women.


ABOUT THE AUTHOR

Rashi Rawat

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Rashi Rawat is a second-year student from Gujarat National Law University, Gandhinagar pursuing B.A. LLB (Hons.). She has a keen interest in Competition law, Intellectual Property Rights, Family Law, Public International law and Human Rights law. She is also a member of the Editorial Board of the GNLU Journal of Law and Economics and keeps herself updated with the role that law and economics play in improving the efficiency of laws. Being a staunch feminist, she loves to read and research about contemporary issues revolving around women empowerment.  She’s a huge Potterhead and firmly believes in the saying, “It is our choices that show what we truly are, far more than our abilities.”

Author:

A project by Law Matters Centre for Research, Education, and Social Action (LaMCRESA).

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