NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI.

FAMILY LAW-II

AN EXPLORATION OF POLYGAMOUS MARRIAGE UNDER

MUSLIM LAW

SUBMITTED BY-
SUBMITTED TO-

RAM KUMAR YADAV

DR.SANGITALAHA

SEMESTER IVth (ASSOCIATE PROFESSOR-CUM-DEAN)

ROLL NO- 951

SECTION- B
 INTRODUCTION

Polygamy is a practice whereby a person has more than a spouse at a time. Polygamy
has been a prominent feature since ancient times practiced among different
communities. It is deeply rooted in lifestyles of our ancestors. Polygamy is the practice
of having more than one wife at a time. The scenario now has changed and not all
communities practice polygamy but it is restricted to Islam which allows marrying at
most four women. Although Islam is one of the fastest growing religion, yet it is the
most misunderstood faith in the world because many claims that it is unjust to women
when it permits polygamy. The permission of polygamy is also one of the major
reasons behind conversion to Islam which is very unjust for a religion. Polygamy was
allowed earlier because of some valid reasons, but now it is being blindly practiced. It
instead promotes inequality among religions as no other religion allows polygamy
except Islam. Polygamy has now become problem for women as they are being
exploited. The permission of polygamy has become a highly contentious issue
challenging the Muslims. The non-Muslims question the validity of polygamy whereas
others accuse Islam of injustice as it allows polygamy.

AIMS AND OBJECTIVES

 To analyze the history of polygamy.

 To check the validity of practice of polygamy in present time.
 To analyze the impact of polygamy on other religions.
 To analyze and compare the position of women in polygamous and monogamous
marriage.

RESEARCH QUESTIONS

1. What was the reason behind allowing polygamy in ancient times?

2. Whether polygamy should be prevalent in present time also?
3. What is the effect of permitting polygamy in Islam on other religions?
4. What is the difference in the position of women in polygamous and monogamous
marriage?
 RESEARCH HYPOTHESIS

Polygamy is allowed since ancient times but now it is restricted to Islam and no other
religion allows polygamy. The practice is being blindly followed without any reason.
Polygamy should now be abolished.

RESEARCH METHODOLOGY

This is doctrinal research. Therefore, the primary sources include statutes and
secondary sources including books, journals, newspaper articles, websites, and cases
etc.

LITERATURE REVIEW

 (Ishiaku Safiyanu,2014)
This article gives a brief about the polygamy and also talks about the challenges to
polygamy. It talks about polygamy as one of the most contentious issue and the need
for renewal in Islamic thought and to address the complexities and realities of modern
life, that it is inappropriate and unsustainable to practice polygamy in the 21st century.
It seeks to address whether polygamy is still relevant to the changing realities of modern
life and provide answers to some of the criticisms against its practice in the
contemporary societies.

 (Tsoaledi Daniel Thobejane, 2014)

This paper highlights what people in polygamous marriages face on a daily basis. It
argues that there are more disadvantages for women who are in polygamous marriages
than there are for their counterparts in monogamous relationships. The paper further
suggests that the patriarchal power structure appears to play a powerful and effective
role in polygamous marriages in our societies. However, there is also a realization that
many people practising polygamy are happier. There is also an exploration of the
complexities of polygamous marriages from a worldview with the hope of
understanding the nature and evolution of polygamous marriages.
.
 (PARUL CHAUDHARY,2015)
 It gives a brief on the inequality among various personal laws. It defines the true
meaning of Islam and also the problem with polygamy and with the women. She writes
that religious personal laws are hurdle for women and somehow religious personal laws
promote patriarchy as women are treated as chattel of husband. It gives a brief about
the problem and inequality among personal laws.

 (Thom Brooks ,2009)

Polygamy is a hotly contested practice and open to widespread misunderstandings. This
practice is defined as a relationship between either one husband and multiple wives or
one wife and multiple husbands. Today, 'polygamy' almost exclusively takes the form
of one husband with multiple wives. In this article, his focus iscentred on limited
defences of polygamy offered recently. He argues that these defences are unconvincing.
The problem with polygamy is primarily that it is a structurally inegalitarian practice in
both theory and fact. Polygamy should be opposed for this reason.

TENTATIVE CHAPTERIZATION

1. INTRODUCTION
2. POLYGAMY : AN OVERVIEW

3. POLYGAMY AMONGST MUSLIMS :ORIGIN AND DEVELOPMENT

4. EXAMINING THE VALIDITY OF POLYGAMY IN PRESENT SCENARIO

5. CONSTITUTIONALITY OF POLYGAMY IN MUSLIMS LAW

6. CONCLUSION
7. REFERENCES

REFERENCES

 Ishiaku, Safiyanu. (2014). Challenges of Muslims on Polygyny in the Modern

Societies: An Islamic Perspective. Journal of Modern Education Review. 4.
 Chaudhary, Parul (2015). Gender inequality in Hindu and Muslim Personal Lawsin
India. International Journal of Home Science. 1(1).
 Brooks, Thom. (2009). The Problem with Polygamy. Philosophical Topics. 37.
 Thobejane, Tsoaledi& Flora, Takayindisa. (2014). An Exploration of Polygamous
Marriages: A Worldview. Mediterranean Journal of Social Sciences. 5.
ABSTRACT

Polygamy has been a prominent feature since ancient times practiced among different
communities. It is deeply rooted in lifestyles of our ancestors. Polygamy is the practice of
having more than one wife at a time. The scenario now has changed and not all communities
practice polygamy but it is restricted to Islam which allows marrying at most four women.
Although Islam is one of the fastest growing religion, yet it is the most misunderstood faith in
the world because many claims that it is unjust to women when it permits polygamy. The
permission of polygamy is also one of the major reasons behind conversion to Islam which is
very unjust for a religion. Polygamy was allowed earlier because of some valid reasons, but
now it is being blindly practiced. It instead promotes inequality among religions as no other
religion allows polygamy except Islam. Polygamy has now become problem for women as
they are being exploited. The permission of polygamy has become a highly contentious issue
challenging the Muslims. The non-Muslims question the validity of polygamy whereas others
accuse Islam of injustice as it allows polygamy.

This paper argues that women in polygamous marriage are more disadvantaged than
their counterparts in monogamous relationship and also questions whether polygamy should
be prevalent in present times.

Keywords: Polygamy, Muslim Law, Religion, Islam.

POLYGAMY:AN OVERVIEW

Equality is now a universally accepted principle among human beings. The

constitution of most of the nations of the world also grant the right to equality. Our
constitution of India also aims to secure social, economic and political justice to all the
people. It guarantees equality before the law and equal protection of law as one of the
fundamental rights. Also, Article I of the universal declaration of human rights 1948, states
that “all human beings are born free and equal in dignity and rights”.1

Despite of having all such declarations and constitutional guarantees women have not
acquired complete equality with men. there are still such laws and customs prevalent which
do not give equal rights to women. Prime among these laws are personal laws which
perpetuates male domination. One of the most prominent inequality prevalent is the

1
UN General Assembly. (1948). "Universal declaration of human rights" (217 [III] A). Paris. Retrieved from
http://www.un.org/en/universal-declaration-human-rights/.
institution of polygamous marriage. Although this problem is not concerned with Hindu,
Christians, Parsis and Jews, but they get effected by the Muslim personal law of India where
this problem continues to exist.

Polygamy understood in loose sense implies a man cohabiting with more than one
woman. Polygamy was allowed in earlier times because of certain reasons. It may be the
decrease in number of men. in patriarchal society women were treated no better than a
chattel. Gradually, however, polygamy was limited, restricted or abolished through legal
sanctions. But so far Muslims are concerned, limited polygamy, particularly in India is still in
vogue.

Although Islam is one of the fastest growing religion, yet it is the most misunderstood
faith in the world because many claims that it is unjust to women when it permits polygamy.
The permission of polygamy is also one of the major reasons behind conversion to Islam
which is very unjust for a religion. Polygamy was allowed earlier because of some valid
reasons, but now it is being blindly practiced. It instead promotes inequality among religions
as no other religion allows polygamy except Islam. Polygamy has now become problem for
women as they are being exploited. The permission of polygamy has become a highly
contentious issue challenging the Muslims.

The problem with polygamy needs to be addressed as it leads to inequality among

religions as well as it is biased against women. The practice of polygamy should now be
abolished as there is no point allowing polygamy.

STATUS OF MUSLIM WOMEN IN INDIA.

Muslims in India have maintained a character of their own, but they have always been
distinct from Muslims of any other Islamic nation. This is because, as a community they are a
product of numerous disparate groups from all over the Muslim world. All this has a certain
amount of relevance on the present status of Muslim Women in India.

Woman had no recognized place or status in this agnatic Arab society. Besides, marriage was
contracted on payment of a bride-price; a wife was thus bought and therefore looked upon as
a kind of chattel. A wife could be lent to a guest as a mark of hospitality, for which the Arab
was well known. She was handed over to a friend for sexual intimacy when a man went on a
journey, or was given over to a stranger when better seed was desired. These modes of
behaviour towards women reflect not only the Arab's conception of woman as his property
but also his attitude toward sex.2

Mahr is no longer regarded as the bride price as it was in the old Arabic law but as a
gift to the bride. It becomes now the property of bride not of her father or guardian. Mahr is
either a sum of money or other form of property to which the wife becomes entitled by
marriage. It is not a consideration proceeding from the husband for the contract of marriage,
but it is an obligation imposed by the law on the husband as a mark of respect for the wife as
is evident from the fact than non-specification of dowry at the time of marriage does not
affect the validity of marriage.3

If woman is given in marriage by her guardian she is now entitled to a dissolution of

the marriage, if it took place before she attained the age of fifteen and she repudiated it,
provided that marriage was not consummated before she attained the age of eighteen.4

It does not however contemplate equality between man and woman. In equality
between man and woman faces us at every step. In India, though constitutional aim is to
provide justice, social, economic, political, to all citizens, but Muslim women are lagging
behind. Still unilateral divorce is exercised by Muslim husband, law relating to polygamy is
not reformed where changes are introduced in this respect in other countries. Though need is
greatly felt for change in the Muslim law to raise the status of Muslim women, Bombay High
Court in 1952 (while upholding the validity of Bombay Prevention of Hindu Bigamous
Marriage Act,1946)which banned bigamy among Hindus, and was challenged on the ground
of discrimination between Hindus and Mohamedans said that, "the Hindu community was
more ripe for the reforms in question. In 1955 bigamy was prohibited among Hindus in India.
But the question is, Has the Muslim Community not yet ripe for the reform in question.
While all over the world reforms are made?5

Muslim women legal rights in respect of marriage and divorce are not only inferior to
those of men but are completely out of harmony with commands of modern society.

2
Kapadia; Marriage and family Law in India, P.38 (Ed.1958).
3
The dissolution of Muslim Marriage Act,1939, S.2(vii).
4
Abdur Rahim; Muhammadan Jurisprudence,334.6666
5
State of Bombay V. NarasuAppa Mali,1952, Bom. 84 at 95, para 30.
 POLYGAMY AMONGST MUSLIMS; ORIGIN AND DEVELOPMENT (WITH
REFERENCE TO INDIA).

These essential features of the Muslim law of marriage go back to the customary law
of the Arabs. Early life in Arabia was considerably influenced by the peculiar geographical
and climatic conditions. The variations in the climate and the geographical conditions led to
the formation of two different kinds of inhabitants. Some of them were more or less the
nomadic kind and the others were settled folk.6

The necessity of the struggle for existence made them offer unconditional loyalty to
their own class men.7

The Government of the Pre-Islamic Beduins was based on qabila(Tribe). They were
bound by the body of unwritten rules which had evolved along with the historical growth of
the tribe itself as the manifestation of its spirit and character. Neither the tribal head nor any
representative assembly has legislative power to interfere with this system. Modification of
the law which naturally occurred with the passage of time, may have been initiated by
individuals but their real source lay in the will of the whole community, for they could not
form part of the tribal law unless and until they were generally accepted as such.8

In the absence of any legislative authority there did not exist any official organisation for the
administration of the law. Tribal pride usually demanded that inter-tribal disputes be settled
by force of arms, while within the tribe recourse would usually be had to arbitration. Under
this system, the individual lacked legal protection outside his tribe. For the protection of tribe,
presence of many sons was highly desired. This was ensured by the fertility of their marriage
and by polygamy which, in itself provided the family with abundant female labour.9

Among the educated sections of the population, there is the feeling that polygamy is an evil
practice and many of the Indian Muslims now prefer monogamy.10

Among Hindus the various law has been passed which directly or indirectly affect women.
The main piece of legislation which changed the marital status of Hindu women is the Hindu

6
B.R.Verma, Mohammedan Law, p.2. (1978).
7
Ibid.
8
N.J. Coulson, History of Islamic Law, p. 9.
9
Ibid.
10
J.N.D.Anderson; Islamic Law In Modern India, (Edited by Tahir Mahmood) p.34.
Marriage Act, 1955, which prohibits Hindus from contracting bigamous marriage and gives
to the wife the right to obtain divorce in certain circumstances.11

But the condition of the Muslim women is however deplorable. There is hardly any
legislation which improves the legal status of Muslim women in family life. Muslim husband
can still easily get divorce but not the wife. Male Muslim may still have as many as four
wives at a time but Muslim women cannot have more than one husband. Worst still under the
Hanafi law if a Muslim takes a fifth wife, the marriage is not void, but merely “irregular,
which he can regularise at any time by divorcing any one of the earlier four wives". A Sunni
taking a fifth wife is not guilty of the offence of bigamy under sections 494,495 of Indian
Penal code.12 However, among the Shias the fifth marriage is void and therefore, a Shia
husband who takes a fifth wife can be prosecuted for bigamy. 13 This, in brief, is the present
position of polygamy amongst the Muslims in India.

EXAMINING THE VALIDITY OF POLYGAMY IN PRESENT SCENARIO

The concept of polygamy came into the picture in Seventh Century to consider the
issue of taking care of large number of widows and orphans who were left without husbands
and father after the battle of Uhud near Medina between early Muslims and the inhabitants of
Meccain which Muslims suffered defeat and many Muslim men were killed. 14The concept of
polygamy was allowed in this verse because of utmost concern for the welfare of women and
orphans who were left behind in the battle. It is pertinent to mention that by no means it is a
general licence to Muslims in present times to marry with more than one woman. Besides it
puts onus on them to treat the additional spouses justly, which is admittedly a difficult task.
The Holy Quran at Surah AI Nissa4:129 it is said that

“And it will not be within your power to treat your wives with equal fairness, however
much you may desire it…..”

It is illegal for a married Muslim female to marry a second time during subsistence of
first marriage and such second marriage is void. As marriage is a contract in Islam, the girl
can include a condition in marriage Contract i.eNikahnama that boy shall not marry during

11
The Hindu Marriage act, 1955.
12
Indian Penal Code, 1860.
13
Shahulameedu v. Subaida 1970 MLJ (Cr.), 569.
14
Sameena Begum v. Union of India, (2018) 16 SCC 458.
the subsistence of that marriage. But this will make the second marriage as a breach of
Contract but still not a ground for making Polygamy void.15

It was pointed in case by petitioner that spite of guarantee of the Constitution; Muslim
women are subjected to discrimination. There is no safeguard against arbitrary divorce and
second marriage by her husband during the currency of the first marriage, resulting in denial
of dignity and security to her. It is pointed out that the matter needs consideration by this
court as the issue relates not merely to policy matter but to fundamental rights of women
under Articles 14, 15 and21 of the Constitution and international conventions and
covenants.”16

Article 3 of the Universal Declaration of Human Rights provides that everyone has
the right to life, liberty and security of person while Article 7 provides that everyone is equal
before the law and is entitled without any discrimination to equal protection of the law. 17
Since the adoption of the Universal Declaration of Human Rights, universality and
indivisibility of human rights have been emphasized and it has been specifically recognized
that women’s human rights are part of universal human rights. In the year 2000, on the
grounds that it violates the dignity of women, the United Nations Human Rights Committee
considered polygamy a destruction of the internationally binding International Covenant on
Civil and Political Rights (to which India acceded on 10.04.1979) and recommended that it
be made illegal in all States.18 It is well recognized in international law that polygamy
critically undermines the dignity and worth of women.

Examining the circumstances and arguments laid down in various cases it is evident that
polygamy is against the rights of women and it undermines the dignity of women. It is a
discrimination against women which is violative of fundamental rights guaranteed under
constitution of India. So, polygamy is not a valid practice as it is violative of fundamental
rights as well as it discriminates against women.

CONSTITUTIONALITY OF POLYGAMY IN MUSLIM LAW

Polygamy in Muslim Law is not prohibited till now since it is their religious practice
and so they tend to practice it. However, it is to be noted that if a custom or practice that

15
Ibid.
16
Ashwini Kumar Upadhyay v. Union of India, (2018) 9 SCC 64.
17
UN General Assembly. (1948). "Universal declaration of human rights" (217 [III] A). Paris. Retrieved from
http://www.un.org/en/universal-declaration-human-rights/
18
Ashwini Kumar Upadhyay v. Union of India, (2018) 9 SCC 64.
 is prescribed under personal law violates the basic fundamental rights of the
Constitution, it should be struck down. In this paper, the authors will reflect upon them
in detail.

RIGHT TO EQUALITY:

Article 14 guarantees equality before the law within the territory of India. One facet is
that there shall be no privileged person or class and that none shall be above law.
Another facet is the obligation upon the State to bring about an equal society as equality
19
can be predicated meaningfully only in equal society. It permits classification but
prohibits class legislation. So, a reasonable classification is not only permitted but is
necessary for a society to progress.20 The classification must not however be arbitrary,
artificial or evasive but must be based on substantial distinction bearing reasonable
relation to the object which is sought to be achieved.

Test of reasonable classification:

Classification to be reasonable, there must be a substantial basis for making the

classification and there should be a nexus between the basis of classification and the
object of the statue under consideration. 21 It must be founded on substantial differences
which distinguish persons grouped together from those left out of the group and such
differential attributes must bear a just and rational relation to the object sought to be
achieved.22

Section 494 of IPC makes bigamy a criminal offence, but section 2 of Shariat Act

19
Sri Srinivasa Theatre v. Govt. of Tamil Nadu, (1992) 2 S.C.C. 643.
20
Jagit Singh v. State, A.I.R. 1954 Hyd. 28.
21
Laxmi khandasari v. State of Uttar Pradesh, (1981) 2 S.C.C. 600.
22State of Maharashtra v. Indian Hotel &Restaurants assn., (2013) 8 S.C.C. 519.

20

21

22
 allows the application of polygamy on Muslims. Also, Muslim women aren‘t allowed to
practice polygamy which results in arbitrary and unreasonable classification solely
based on the basis of religion and sex. Thus, equality guaranteed under Article 14 is
disrupted.

Religious Discrimination
By section 2 of the Shariat Act, Muslim men can practice polygamy. Men belonging to
other religions are prohibited from practicing polygamy by section 494 of IPC and their
respective personal laws do not provide them with the power of unilateral and
irrevocable talaq. Also, women belonging to other religions are protected from these evil
practices but they are invoked against Muslim women. Direction issued for rehabilitation
by state Government of community (Muslim Families) alone, found unacceptable. 23
Classification of establishments does not satisfy test of equality. Although, Indian
Christians form a class by themselves but there is no justifiable reason to hold that the
classification made is either based on intelligible differentia or the same has any nexus
with the object sought to be achieved. The purport and object of that provision must be
held to be non-existent. While interpreting a restrictive statute, one may consider not
only the past history of the legislation but the manner in which the same has been dealt
with by the legislature of its origin. Moreover, the Constitutionality of a provision, it is
trite, will have to be judged keeping in view the interpretive changes of the statute
affected by passage of time.24

Gender Discrimination

Polygamy should be considered as arbitrary and discriminatory, under Art. 14 and 15,
in the same manner as it was held in the case of Charu Khurana v. Union of India. 25 It
was held that discrimination based on sex was opposed to gender justice. Apart from
violating the statutory command, they also violate the Constitutional mandate which

2323
Mohd. Haroon v. Union of India, (2014) 5 S.C.C. 705.
24
John Vallamattom v. Union of India, (2003) 6 S.C.C. 611.
25 Charu Khurana v. Union of India, (2015) 13 S.C.C. 44.

24

25
 postulates that there cannot be any discrimination on the ground of sex as sustenance of
gender justice is the cultivated achievement of intrinsic human rights.

Also, India recognizes a plural legal system, wherein different religious communities
are permitted to be governed by different personal laws. However, the laws of each
religious community must meet the test of Constitutional validity or Constitutional
morality.

Art.15 (1) prohibits the State from discriminating against citizens on grounds only of
religion, race, sex, caste, and place of birth or any of them. The right guaranteed in Art.
15 (1) is conferred on a citizen as an individual and is available against him being
subjected to discrimination in the matter of rights, privileges and immunities pertaining
26
to him as a citizen generally. Hence, by allowing the practice of polygamy, the State
has discriminated on the basis of gender and religion which is against the Constitution.

The Judges should adapt purposive interpretation of the dynamic concepts under the
Constitution and the act with its interpretive armory to articulate the felt necessities of
time. The existing social inequalities or imbalances are required to be removed
readjusting the social order through rule of law. 27In S.R. Bommai v. Union of India, 28
this Court held that the Preamble is a part of the basic structure of the Constitution. The
basic structure permeates equality of status and opportunity. The personal laws
conferring inferior status on women are anathema to equality. Personal laws are derived
not from the Constitution but from the religious scriptures. The laws thus derived must
be consistent with the Constitution lest they become void under Art. 13 if they violate
fundamental rights. When a statue is in part void, it will be enforced as regards the rest,

26

26
Nain Sukh Das and Ors. v. State of U.P. and Ors., A.I.R. 1953 S.C. 384.
27
State of Karnataka v. AppuBaluIngale&Ors., A.I.R. 1993 S.C. 1126.
28
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
29
R.M.D Chamarbaugwalla v. Union Of India, A.I.R. 1957 S.C. 628

27

28
 if that is severable from what is invalid. 29 It is humbly submitted that the application of
Section 2 of the said act in respect of marriage and divorce are alone void. The
application on the rest of the subject matters is valid. Therefore, the practice of
polygamy is in violation of Art. 14 of the constitution and ought to be struck down.

RIGHT TO LIFE

It is submitted that the practice of polygamy is in violation of Article 21 of the

Constitution as the right of a woman to human dignity, social esteem and self-worth are
vital aspects of her right to life under Article 21.

The right to life includes the right to live with human dignity. It includes right to
livelihood, better standard of living, hygienic conditions in the work place and
leisure.30In a catena of cases, the Supreme Court observed that the right to live is not
merely a physical right but includes within its ambit the right to live with human
dignity.31 In the case of Bandhu Mukti Morcha v. Union of India, 32 the State has
obligatory duty to protect from the violation of fundamental rights especially to the
weaker section of the society. Women were considered to be the weaker sex in the
above mentioned case. Any custom or usage irrespective of even any proof of their
existence in pre-Constitutional days cannot be countenanced as a source of law to claim
any rights when it is found to violate human rights, dignity, social equality and the
specific mandate of the Constitution and law made by Parliament. 33 It is submitted that
a woman‘s right to a good and healthy life is being infringed by the practice of
polygamy. The decent and civilized life is the fundamental right which also includes
food, weather and decent environment. The practice of polygamy takes away this right
of a Muslim woman. Polygamy is a practice that has been recognized as an evil plague

29

30
Francis Coralie v. Union Territory of Delhi, (1981) 1 S.C.C. 608.
31
Vishaka v. State of Rajasthan, (1997) 6 S.C.C. 241.
32
(1997) 10 S.C.C. 549
33
N. Adithayan v. The Travancore Devaswom Board, (2002) 8 S.C.C. 106.

31

32

33
 and has been banned under section 494 of the IPC. Unfortunately, it still bothers
Muslim women notwithstanding that it poses extremely serious health, social,
economic, moral and emotional injury.

The right to life‖ includes the right to lead a healthy life so as to enjoy all faculties of the
human body in their prime conditions. The practice of polygamy disrupts the peace of
the women and creates a toll on their mental health. It is also submitted that, if during
the subsistence of a valid marriage the husband had remarried another, necessarily, that
will be a mental cruelty towards the first wife. Thus, polygamy is cruel towards woman
and therefore affects her right to peaceful life guaranteed to her under Article 21.

Under the Muslim Law, marriage is a contract and contract cannot be rescinded
unilaterally. Personal law or Constitution of India does not entitle the husband to
rescind contract, orally, by notice or by ex parte decisions, hence seems to be
unsustainable, otherwise also it shall be bad in law. 34 The Holy Quran clearly states that
one can marry the widowed and orphaned up to four, but only if they can treat them all
equally.35 The Holy Quran also states that it is impossible to treat all of the wives
equally. Hence, it is very pertinent to note that the practice of polygamy is not
mandated by the Holy Quran.

Matrimony today is not merely in arrangement of convenience for exhausting

biological, physical and carnal urges without offending the norms of morality of the
given age. Spouses today are not merely machines in the assembly line of production to
perpetuate the human race on this planet. 36 The second marriage is not a single but a
continuing wrong to the first wife. 37"It is but a short step from this principle to ask the
husband who has taken it into his head to have a second wife during the subsistence of
the first marriage to explain the reasons for this conduct and in the absence of a
convincing explanation, to conclude that there is little likelihood of the first wife

34
Aaqil Jamil and Ors. v. State of U.P. and Anr, (2017) 2 A.C.R. 1870.
35
Quran surah al nissaayat 3.
36
Aboobacker v. Rahiyanath, 2008 (3) K.L.T. 482.
37
Abdurahiman 49 years v. Khairunnessa 43 years, (2010) D.M.C. 707 Ker.

35

36

37
 receiving equitable treatment from him. A complete ban on polygamy has long been
need of the hour as it renders Muslim wives extremely insecure, vulnerable and
infringes their fundamental rights. A combined reading of Articles 14, 15 and 21 of the
Constitution provides that no law can be made or can be applied which discriminates
against women.

RIGHT TO RELIGION

Polygamy is not an essential practice of Islam religion. Article 25 protects those

practices of a religion without which the fundamental character of the religion will
change. What is meant by 'an essential part or practice of a religion' is now the matter
for elucidation. In the present case, the Respondents claim that polygamy and talaq- e-
biddat‘ are essential practices of Islam. Essential part of a religion means the core
beliefs upon which a religion is founded. Essential practices mean those practices that
are fundamental to follow a religious belief. 38 Test to determine whether a part or
practice is essential to a religion is to find out whether the nature of the religion will be
changed without that part or practice, if the nature changes then it can be treated as an
essential part of the religion.

Earlier, Muslims believed that shifting of graves was not allowed. But in the case of
Abdul Jalil v. State of Uttar Pradesh, 39 the Hon‘ble Court Supreme Court observed that
there is no text in the Holy Quran prohibiting removal or shifting of graves. Likewise,
the Quran is being misinterpreted by Muslim men to have more than one wife and to
give unilateral divorce.
In the case of Shahulameedu v. SubaidaBeevi,40 it has been observed by the Kerala High
Court that, ―Yusuf Ali in his commentary on the Holy Quran pointed out that the
Prophet first strictly limited the unrestricted number of wives of the 'Times of
Ignorance' to a maximum of four, provided you could treat them with perfect equality in
material things as well as in affection and immaterial things.' As this condition is most
difficult to fulfil, the recommendation was understood to be towards the practice of
monogamy. Though the personal law of Muslims permitted having as many as four
38
Commissioner of Police v. Acharya JagadishwaranandaAvadhuta and Ors., (2004) 12 S.C.C. 7.
39
Abdul Jalil v. State of Uttar Pradesh, A.I.R. 1984 S.C. 882.
40
Shahulameedu v. SubaidaBeevi, 1970 K.L.T. 4.

39

40
 wives it could not be said that having more than one wife is a part of religion. Neither is
it made obligatory by religion nor is it a matter of freedom of conscience. Any law in
favor of monogamy does not interfere with the right to profess, practice and propagate
religion and does not involve any violation of Art. 25 of the Constitution. 41It is humbly
submitted that the other essential practices of the religion can survive in isolation of this
practice.

It is to be understood that Muslim Law as enforced in India has considered polygamy as

an institution to be tolerated but not encouraged, and has not conferred upon the
husband any fundamental right to compel the first wife to share his consortium with
another woman in all circumstances.42 Muslim Personal Law does not permit a Muslim
to treat one wife cruelly, drive her out of the Matrimonial home and then get married
for the second time.43

It is submitted that Art. 26 (b) grants rights to a religious denomination to freely

manage and exercise its own affairs in matters of religion except in cases where they
run contrary to public order and morality. Although this right is given to the religious
denomination, the Courts have the right to decide what amounts to an essential right or
ceremony as regarding to the tenets of the particular religion. 44 Polygamy is not an
essential part of the Islam religion, and hence would come under the clause 2 of Art. 25
of the Constitution. Polygamy is only an act permitted by the religion and not mandated
so it will not amount to the distinct culture mentioned under Art 29 (1).

In the case of Zahid Mukhtar and Ors. v. The State of Maharashtra and Ors., 45 Art. 29 is
for preservation of the essential culture of the people and not with peripheral customs
which have no relation to an existing culture. He rightly gave an example of the
abolition of the practice of Sati or untouchability which can be said to be a part of
traditional practice. However, the abolition of such traditional practice cannot amount to

41
Badruddin v. Aisha Begum, (1957) All L.J. 300.
42
Smt. R.A. Pathan v. Director of Technical Education and Ors.,
A.I.R. 1960 All. 684.
43
Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat,
(2012) S.C.C. Guj. 1358. 44Achariyajagdiswaranandavadhut v.
commr of police, (1984) 4 S.C.C. 522.
45Zahid Mukhtar and Ors. v. The State of Maharashtra and Ors., (2017) 2 A.B.R. 140
42

43

44

45
 destroying culture. Cultural right cannot be confused with right to religion. Common
thread in Art. 29(1) is language, script and culture and not religion. Therefore, the
argument based on the violation of Art. 29 is without any merit. Hence polygamy, even
it is an existing culture in Islam, it is not an essential part of the religion and hence it
cannot claim protection under Art. 26 (2) and Art. 29.

CONCLUSION

After analysing various judgements, arguments and historical background of polygamy it is

found out that the practice of polygamy is discriminatory in nature and it not only violates the
fundamental right of women but also undermines her dignity. The courts in various cases
have reiterated again and again that the practice of polygamy should not exist as it
discriminates against the women. It is pertinent to state that in the Javed case, 46 the Court held
that;

“Polygamy is injurious to public morals and can be superseded by the State just as
practice of ‘Sati’.”

Solution to this problem is that we should step towards achieving uniform civil code
which is the dire need for removing discrimination. The time is now ripe that India should
adopt uniform civil code. The hon’ble Supreme Court in various cases has emphasized on the
need for uniform civil code. In ShahBano case, 47 this Hon’ble Court has observed thus: “It is
a matter of regret that Article 44 has remained dead letter. It provides that ‘the State shall
endeavour to secure for the citizens a uniform civil code throughout the territory of India’.
Common civil code will help the cause of national integration by removing desperate
loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by
making gratuitous concessions on this issue. It is for the state, which is charged with the duty
of securing a uniform civil code and it has legislative competence to do so”.

In John Vallamattom case,48 the then Hon’ble Chief Justice of India Justice V.N.
Khare, with whom the other two Judges, Justice Sinha and JusticeLakshman agreed, observed
thus: “A common civil code will help the cause of national integration by removing all
contradictions based on ideologies”. The Court also observed that “the power of the

46
Javed v. State of Haryana, (2003) 8 SCC 369.
47
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
48
John Vallamattom v. Union of India, AIR 2003 SC 2902.
Parliament to reform and rationalize the personal laws is unquestioned and the command of
Article 44 of the Constitution is yet to be realized”

Thus, the practice of polygamy should be abolished, which is possible through

adopting a uniform civil code.