Polygamy being ‘widely misused’ even against religious mandate: Allahabad HC

Prayagraj: The Allahabad High Court has observed that while Islam permits polygamy under certain circumstances and with certain conditions, this permission is being ‘widely misused’ even against the mandate of the Muslim law.

Giving the observation, Justice Arun Kumar Singh Deshwal said polygamy was conditionally permitted under the Quran during early Islamic times to protect widows and orphans after heavy wartime casualties. However, the said, the provision is now being misused by men for “selfish purposes”.

In its order dated May 8, the court also clarified the legal position regarding multiple marriages by a Muslim male and their implications under Section 494 of the Indian Penal Code (IPC) (Offence of bigamy).

The court laid down the circumstances under which such marriages may or may not attract the offence of bigamy. It held that if a Muslim male performs his first marriage according to the Mohammedan law, then the second, third or fourth marriage will not be void. Therefore, the ingredients of Section 494 IPC will not be attracted for the second marriage except in those cases where the second marriage was itself declared ‘batil’ (void marriage) according to Shariat by the Family Court.

The court said if the first marriage by a person is performed under Special Marriage Act, 1954, Foreign Marriage Act, 1969, Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936 and Hindu Marriage Act, 1955, and he performs the second marriage according to the Mohammedan law after converting to Islam, his second marriage will be void and offence under Section 494 IPC would be attracted for such a marriage.

Case details

The order was passed while hearing a petition filed by Furkan and two others challenging the charge-sheet as well as the summoning order by a court of Moradabad under sections 376 (rape), 495 (second marriage with concealment of former marriage), 120-B ( criminal conspiracy), 504 (insult) and 506 (criminal intimidation) of IPC.

The FIR was lodged by opposite party no. 2 (wife), alleging that applicant Furkan married her without disclosing that he was already married and that he raped her during the subsistence of such marriage.

On the other hand, the applicant contended that the informant herself admitted to marrying him after being in a relationship. His counsel argued that no offence under Section 494 IPC would be made out against him, as under the Mohammedan law and the Shariat Act, 1937, a Muslim man is permitted to marry up to four times.

It was also submitted that all the issues regarding marriage and divorce had to be decided according to the Shariat Act, 1937, which also permits the man to get married even during the lifetime of the spouse.

It was further submitted that as the 1937 Act is a Special Act while the IPC is a General Act, therefore, the former will have an overriding effect. It was also submitted that in the Mohammedan law, the second marriage is not void if the first marriage is performed according to the Mohammedan law.

On the other hand, the additional government advocate (AGA) disputed this submission by contending that a second marriage performed by a Muslim man will not always be a valid marriage because in case the first marriage was not performed according to the Muslim law but according to the Special Act or Hindu Law, then the second marriage would be void and offence under Section 494 IPC would be attracted.

In the backdrop of these submissions, the court at the outset referred to the concept of ‘nikah‘ (marriage) according to the Muslim Personal Law and other authorities on Mohammedan Law to note that a plurality of marriages is not unconditionally conferred upon the husband.

The bench further noted that while the Quran allows polygamy for a fair reason and it is conditional polygamy, men use that provision today for a selfish purpose.

“There is a historical reason why the Quran allows polygamy. There was a time in history when a large number of women were widowed and children were orphaned in the primitive tribal tussles among the Arabs.

“The Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. It was under such circumstances that the Quran allowed conditional polygamy to protect orphans and their mothers from exploitation,” the court said.

It also referred to a judgment in the case of Jafar Abbas in which it was observed that the Quran forbids polygamy if the purpose of marrying more than once is self-interest or sexual desire and observed that it is for the maulvis to ensure that Muslims may not abuse the Quran to justify polygamy for their self-interest.

In this case, the court also held that there is no law which declares a second marriage under the Mohammedan law as void and, therefore, the same will not be punishable under Section 494 IPC.

Going into the question whether a second marriage contracted by a Muslim could be declared void under any circumstances, the court said such a second marriage would be void if it is declared by the Shariat as batil, especially where the marriage was performed or contracted within the prohibited degree of relationship.

However, it added that the question would arise as to who will declare the second marriage of a Muslim male as batil according to the Mohammedan law.

In the present case, the court observed that both the applicant and the opposite party are Muslims and, thus, the applicant’s second marriage would be valid and no offence as aforementioned would be made out against him.

Thus, issuing notice to the opposite party, the court stayed any coercive action against the applicant and ordered listing the matter in the week commencing May 26.