Why is the Supreme Court Examining Polygamy Again?

UPSC Syllabus: Gs Paper 3- Indian Constitution

Introduction

The Supreme Court has sought the Centre’s response to a petition challenging the constitutional validity of polygamy among Muslims. The petition seeks to abolish the practice for all citizens and apply laws against bigamy uniformly. The case raises questions about Muslim Personal Law, gender equality, fundamental rights and religious freedom under Article 25. The Court has only issued notice and has not yet ruled on polygamy.

What Does the Present Petition Seek?

1. Challenge to the 1937 Act: The petition challenges Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it recognises and validates polygamy.
2. Declaration against polygamy: The petitioners seek a declaration that polygamy is unconstitutional and violates the fundamental rights guaranteed to women.
3. Uniform application of bigamy law: They seek removal of personal-law exemptions and the application of Section 82 of the Bharatiya Nyaya Sanhita to all citizens.
4. Criminal-law questions raised: A petition has also questioned whether Sections 498A, 375 and 494 of the Indian Penal Code, 1860 should be used to criminalise triple talaq, polygamy and nikah halala, respectively.
5. Abolition through legislation: The Union government has been asked to take suitable legislative steps to abolish polygamy, irrespective of religion.
6. Codification of Muslim Personal Law: The petition seeks a codified framework for marriage, divorce and successionthat conforms to constitutional principles of gender equality.
7. Mandatory registration: Muslim marriages and divorces should be compulsorily registered with State authorities to prevent secret or subsequent marriages.
8. Protection of women and children: The plea seeks protection regarding maintenance and the matrimonial home for the first wife and children affected by a subsequent marriage.
9. Global examples cited by petitioners: The petition highlights that Tunisia and Turkey, among several Muslim-majority countries, have already abolished polygamy.

What are the Constitutional Questions Involved?

1. Equality before law: The petition argues that polygamy violates Article 14, which guarantees equality before law and equal protection of laws.
2. Gender-based discrimination: It invokes Article 15, arguing that permitting multiple marriages to men raises questions of discrimination against women.
3. Dignity and personal liberty: The challenge also relies on Article 21, linking the practice with women’s constitutionally guaranteed dignity and personal liberty.
4. Personal laws and fundamental rights: The Court must examine whether provisions under personal law can continue when they are challenged as violating fundamental rights.
5. Religious freedom under Article 25: The petition argues that polygamy is permissive rather than an essential religious practice and cannot automatically claim protection under Article 25.
6. Gender equality and constitutional morality: The petition asks whether a practice permitting multiple wives can survive constitutional scrutiny when weighed against gender equality and constitutional morality.

Why is Section 82 of the Bharatiya Nyaya Sanhita Important?

1. Provision against bigamy: Section 82 of the Bharatiya Nyaya Sanhita (BNS) deals with marrying again while an existing marriage remains legally valid.
2. Punishment for a second marriage: The provision provides imprisonment of up to seven years for contracting another marriage during the subsistence of the first marriage.
3. Exemption under Muslim Personal Law: The petition argues that Muslim men are exempt from prosecution for bigamy because Muslim Personal Law permits polygamy.
4. Demand for a uniform legal position: The petitioners seek the extension of Section 82 to all citizens, irrespective of religion.

Earlier Supreme Court Rulings and Related Pending Cases

1. Sarla Mudgal Case, 1995

• Conversion cannot bypass marriage law: The Supreme Court held that a Hindu man cannot convert to Islam solely to contract another marriage without dissolving his first marriage.
• Second marriage held void: Such a second marriage was held void when the first marriage remained legally valid.

2. Lily Thomas v. Union of India, 2000

• Earlier ruling reaffirmed: The Supreme Court reaffirmed that conversion undertaken merely to contract another marriage cannot defeat the law governing the first marriage.
• Second marriage remained punishable: A marriage after a feigned conversion to Islam was held illegal and punishable under Section 494 of the Indian Penal Code.

3. Shayara Bano Case, 2017

• Instant triple talaq was invalidated: The Supreme Court invalidated instant triple talaq (immediate and irrevocable divorce through three pronouncements) in August 2017.
• 2019 law criminalised instant triple talaq: The Muslim Women (Protection of Rights on Marriage) Act, 2019subsequently made instant triple talaq a punishable offence.

4. Earlier challenge before a Constitution Bench

• Challenge to Section 2 in 2022: In August 2022, a Constitution Bench issued notices while hearing petitions challenging Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, concerning polygamy and nikah halala.
• Notices to statutory commissions: In the same batch of petitions, the Constitution Bench sought responses from the National Commission for Women, National Commission for Minorities and National Human Rights Commission.

5. Related pending matters

• Talaq-e-hasan is also under challenge: The Supreme Court is examining nine petitions challenging talaq-e-hasan (divorce through three successive pronouncements over separate periods).
• Cases have been tagged together: The present petition has been tagged with similar pending matters, bringing several questions concerning Muslim Personal Law before the Court.

What is the Debate Within Muslim Personal Law?

1. Islam does not simply encourage polygamy: The Quran permits up to four wives only under certain circumstances and places strict conditions on such marriages.
2. Equality among wives is compulsory: A man entering multiple marriages must provide complete and equal justice to all his wives.
3. Preference for one marriage where justice is uncertain: Verse 3 of Surah Nisa directs men to remain with one wife if they fear failing to maintain justice.
4. Historical context of the provision: The verse emerged when men could have a very large number of wives, while the provision limited the number to four.
5. Question of constitutional protection: The petition argues that polygamy is a permissive practice, not an essential religious practice, and therefore cannot claim automatic protection under Article 25 when tested against gender equality and constitutional morality.

What is the Position of the All India Muslim Personal Law Board (AIMPLB)?

1. AIMPLB has sought impleadment: The All India Muslim Personal Law Board (AIMPLB) has moved an application to become a party in the matter.
2. Hindu marriage laws also retain customs: Referring to Section 29 of the Hindu Marriage Act, 1955, the AIMPLB argued that Hindu marriage and divorce laws are themselves not completely uniform.
3. Section 29(2) protects customs: The AIMPLB pointed out that Section 29(2) protects certain existing customs and practices despite the statutory framework governing Hindu marriages.

Conclusion

The case requires the Supreme Court to examine whether polygamy permitted under Muslim Personal Law can continue alongside constitutional guarantees of equality, dignity and personal liberty. The Court must also consider claims relating to Article 25, uniform bigamy laws and gender justice. For now, it has only sought responses and tagged related cases; no ruling has yet been delivered.

Question for practice:

Discuss the constitutional, legal and religious issues involved in the Supreme Court’s examination of polygamy under Muslim Personal Law.

Source: The Hindu