Polygamy under Muslim Law
Author: Shriansh Jaiswal
Polygamy is the practice where a man marries more than one woman. In India, This practice was abolished by the way of the Hindu Marriage Act (1955). Sec 5, 11, and 17 of the Hindu Marriage Act prohibits Bigamy and declares bigamous marriage as void.
It is banned in Christians by the Christian Marriage Act, 1872, and amongst Parsis by the Parsi Marriage and Divorce Act, 1936. So Polygamy is abolished in India except for Muslims and Hindus in Goa and Western Coast. In this paper, we are going to focus on Polygamy in Muslim Law.
From a religious standpoint of view, Marriage in Islam is not a sacrament rather a Civil Contract, unlike Hindus. The practice of polygamy is mentioned in surah 4:3 of the Quran which says that
If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly with them), then (marry) only one.
This verse was revealed after the Battle of Uhud in which many of the Muslims died and hence many women became widows.
- So this practice of polygamy is not mandatory and is neither encouraged. This practice is not an essential religious practice but was merely permitted out of need.
- This Practice was started with Compassion towards the widows.
- The verse suggests that all the wives should be treated equally and if the husband unable to do that, he should not indulge in polygamy.
Since Muslims in India are governed by the Muslim Personal Laws ( Shariat) 1937. Under Sec 2 of the Shariat Act, Polygamy is permitted s, therefore, Muslims can indulge in Polygamous Marriage in India.
- To Study about the practice of polygamy in Muslims in India
- To study about how the practice of practice affects women and children in the family
- To study whether the practice of polygamy is constitutionally valid or not.
- Is Polygamy allowed in Muslim Law in consonance with the Constitution of India?
- How the Polygamy in Muslims affect the woman and the whole family?
REVIEW OF LITERATURE
- Dr. Rana Raddawi “Polygamy can negatively affect women”: She asked 100 Arab women about their experiences with polygamous marriages in a study. Many of the women were found to be experiencing depressive emotions such as neglect and envy. Any of the women developed depression, Angry Tantrums, or even disabilities as a result of their experiences.
- L. D. Shepard “The impact of polygamy on women’s mental health”: She conducted a study which compared the mental health of a woman in a polygamous marriage to a woman in a monogamous marriage. It also went beyond the issue of what issues polygamous women have..
- L.K. Swara “Polygamy in Muslim Law: An Overview”: He conducted a study which is concerned regarding the constitutionality of the practice of polygamy in Muslims in India. He discusses whether the practice of polygamy is violative of Art 14, Art 15 and Art 21.
- M. Nejatullah Siddiqi “RESTRAINTS ON POLYGAMY AND MUSUM PERSONAL LAW”: He conducted a study regarding various aspects of polygamy in Muslim law like the circumstances in which polygamy is allowed, what are the quranic injunctions about polygamy and what are the restraints on the practice of polygamy. It also goes one step further to suggest the control on the practice of polygamy.
- Ajaz Ashraf “As Supreme Court decides on banning polygamy, a look at how Muslim countries deal with the practice”: The author in this article reviewed the laws regarding polygamy in various Muslim countries.
BREACH OF ARTICLE 14
Article 14 states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14 prohibits discrimination and guarantees equality to all persons within the territory of India.
Article 14 comprises two principles
- Equality before law
- Equal Protection of law
The first is a negative concept which states that no person should be given special privileges and everyone should be treated equally according to the law of the land.
The second concept is a positive concept which states that there should be equal treatment in equal circumstances. This also embodies the concept of Intelligible Differentia i.e. Reasonable Classification.
Article 14 thus means that equals must be treated equally and unequal must be treated unequally. So if a group of persons is placed in a disadvantageous position and if a law is made which treats them unequally from the rest of the group for the sake of their advantage that law would not be violative of Article 14.
Equality of opportunity embraces two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results concerning various groups. Both the conceptions constitute ‘equality of opportunity.
Article 14 forbids class legislation however it does not forbid reasonable classification. Classification to be reasonable should fulfill two tests
It should not be arbitrary, artificial, or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped in the class from others left out of it.
The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.
If we analyze Polygamy in India. It is amongst the Hindus, Buddhists, and the Sikhs by the way of the Hindu Marriage Act, 1955, amongst Christians by the Christian Marriage Act, 1872, and amongst Parsis by the Parsi Marriage and Divorce Act, 1936.
However, it is allowed for the Muslims by the way of Muslim Personal Laws (Shariat) 1937. However, the exception which is allowed only for Muslims is violative of Article 14 as there is no reasonable classification and is arbitrary. There is no reason that why Muslim men should be given to indulge in a bigamous marriage. Article 14 allows classification if it has a rational and reasonable nexus with the object sought to be achieved by the statute. But allowing a Muslim man to indulge in a bigamous marriage does provide any advantage in the progress of Muslim Men and rather it is regressive and arbitrary. Also, It is discrimination based on sex and religion. Hence allowing Polygamy for Muslim men is violative of Article 14.
BREACH OF ARTICLE 15
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.
In the case of State of Karnataka v. Appa Balu Ingale & Ors, it was held that
The Judges should adopt a purposive interpretation of the dynamic concepts under the Constitution and the act with its interpretive armory to articulate the felt necessities of the time. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law.
The Practice of polygamy allowed in Muslim law is regressive. Also, this practice does not align with the 21st century as it is discriminatory to women.
The personal law is derived from the religious scriptures and if any part of that law is violative or inconsistent with the constitution. It would be held void under Article 13. Polygamy is one such practice that is in contravention with the constitution as it is discriminatory to the woman because the husband is allowed to keep four wives while women are not allowed to have multiple husbands. Thus the polygamy is in contravention with Article 15 of the constitution as it prohibits discrimination based on sex.
The Andhra Pradesh High Court declared S. 9 of the Hindu Marriage Act which provides for the restitution of conjugal rights as invalid on the ground that, in practice, it works against the females and not against the males.
In the recent case Shayara Bano & ors. v. Union of India , A bench of 5 judges heard the triple talaq case. Triple talaq was a practice where the husband could divorce her wife by uttering talaq 3 times. The Supreme court by the majority of 3:2 invalidated the practice of triple talaq as it was discriminatory to women and thus was in contravention with Article 15.
Also, the practice of polygamy is allowed only in Muslims which is clearly in contravention with Article 15 which prohibits discrimination based on religion.
Thus the polygamy allowed in Muslim law is contradictory to Article 15 of the Constitution as it allows discrimination based on sex and religion.
NOT PROTECTED UNDER ARTICLE 25
Secularism is an important part of our constitution and even the apex court in its various cases held that Secularism is part of the basic structure of the Constitution, one of them is a landmark judgment of Kesavananda Bharati v. Union Of India.
In case of S. R. Bommai v. Union of India, The 9 judge bench, ruled that Secularism is the basic feature of the Constitution of India. It also observed that religion and politics cannot be mixed. If the State follows unsecular policies or courses of action then it acts contrary to the constitutional mandate
Religion is a matter of faith. It is an important facet of people’s life. Our Constitution recognizes it and hence provides the right to practice and profess the religion under Article 25-28. However no constitutional rights are absolute, it comes with restrictions. Article 25 protects only those practices which are integral to religion without which the fundamental character of the religion will change.
The Supreme Court in the case of M Ismail Faruqui v. Union of India ruled out that mosque is not an essential part of Islam. Muslims can offer namaz anywhere and it doesn’t need to be offered in mosques only.
In the case of Maulana Mufti v. State of West Bengal, It was held by the Calcutta High Court that Azan is an integral and necessary part of Islam but certainly not the microphones. The use of microphones at odd hours violates the basic human and fundamental right of the citizens to sleep and leisure.
Now coming to the practice of polygamy, It must be taken into consideration that it is not an essential part of Islam. As we have discussed earlier that the practice of polygamy is mentioned in surah 4:3 of the Quran which says that
If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly with them), then (marry) only one.
So we can see that this practice is neither mandatory nor encouraged but was merely allowed. It was due to the reason that after the battle of Uhud where many Muslims died and hence many women became widows.
In the case of Shahulameedu v. Subaida Beevi, it was observed by the Kerala High Court ―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 fulfill, the recommendation was understood to be towards the practice of monogamy.
In the case of Jafar Abbas Rasool Mohammad Merchant v. the State of Gujarat, Gujarat HC held that 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.
So it is evident that polygamy is not an essential part of Islam as mentioned in the Quran and in the recent case laws as well. So any practice which is not an integral part of a religion does not make it protected under Article 25.
Apart from this, In the case of State of Bombay v. Narasu Appa Mali, a division bench heard the case of the constitutional validity of Bombay Prevention of Hindu Bigamous Marriages Act, 1946 which was challenged on the ground of violation of Articles 14, 15 and 25 of the Constitution.
The SC held that there is a sharp distinction between religious faith and religious practices since the State only protects religious faith and belief while religious practices that run counter to public order, morality or health or a policy of social welfare must give way to the good of the people of the State.
The observations of the Constitution Bench in Danial Latifi & Another v. Union of India are of utmost relevance. This Hon’ble Court held that while interpreting provisions where the matrimonial relationship is involved it has to consider the conditions prevalent in our society. This Hon’ble Court further observed that solutions to societal problems of universal magnitude about horizons of basic human rights, culture, dignity, decency of life, and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith/beliefs/sectarian, racial/communal constraints.
EFFECT OF POLYGAMY ON WOMEN AND CHILDREN
Polygamy is a complex phenomenon. It is a practice that shows the patriarchal nature of our society where men are allowed to have multiple wives. The phenomenon where men have multiple has a serious effect on women, children, and family structure.
In the research conducted by Dr. Rana Raddawi, associate professor in the department of English at the American University of Sharjah. She conducted a survey on 100 Arab women about their experience of living in a polygamous marriage.
It was found that many of the women experienced negative feelings such as feelings of neglect and jealousy. In some of the cases, it got serious and some of the women even suffered from depression, Angry Tantrums, or even illnesses.
In a study conducted by Cambridge scholars to compare the mental health of a woman living in a polygamous marriage with a woman living in a monogamous marriage.
Polygamous women were shown to have higher rates of mental health problems than monogamous women. Polygamous women have a greater rate of somatization, depression, aggression, paranoia, psychoticism, and psychological illness, as well as lower life and marriage happiness, problematic family functioning, and poor self-confidence, according to research. That was large since husbands do not regard any of their wives fairly, which contributes to mental health concerns.
It was also found that in many of the cases, women rarely saw their husbands and many complained that husband did not meet their needs.
Rose Macdermott, professor of political science at Brown University wrote a piece for Wall Street Journal about her research on polygamy. She wrote
“According to the information I have helped to collect in the Womanstats database, women in polygynous communities get married younger, have more children, have higher rates of HIV infection than men, sustain more domestic violence, succumb to more female genital mutilation and sex trafficking, and are more likely to die in childbirth. Their life expectancy is also shorter than that of their monogamous sisters. Besides, their children, both boys and girls, are less likely to receive both primary and secondary education.”
Apart from women, Polygamy also seriously affects the children living in the house. In one of the research, it has been found that when compared to children from monogamous families, children or adolescents from polygynous families had a variety of problems such as mental health disorders, scholastic difficulties, and social problems.
Several research has shown that, as measured by parental schooling, parental wages, and parental work, the socioeconomic status of polygynous families was lower than that of monogamous families. Lower levels of parental schooling, employment, and wages can be viewed as measures of financial hardship, which can adversely affect the well-being of children in both monogamous and polygynous households. This is because there are more children as a result of having many partners, and the single male member of the family is typically the source of income in these types of households.
The United Nations Human Rights Committee concluded in 2000 that polygamy breaches the International Covenant on Civil and Political Rights (ICCPR), citing fears that the absence of equality in respect to relation to the freedom to marriage meant that polygamy, limited to polygyny in nature, violated women’s dignity and should be abolished. Reports to UN Commissions have explicitly noted abuses of the ICCPR as a consequence of these disparities, and reports to the UN General Assembly have suggested that it be outlawed.
In the case of Khursheed Ahmad Khan v. the State Of U.P, (2015) 8 SCC 439, Khursheed Ahmad Khan, a government official who was sacked for corruption after it was discovered that he was already married and had a second marriage. As the sister of his first wife lodged a lawsuit with India’s National Human Rights Commission, the specifics of his second marriage became public. The ruling came against Khursheed Ahmed where the Supreme court ruled out that It is found that there is no proof on the record that the appellant divorced his first wife previous to the second marriage or told the government about the second marriage. If there isn’t, the second marriage is considered adultery under the Conduct Rules.
The Supreme Court of India stated, Muslims, like any other minority in India, have the freedom to practice their faith, but those rights do not allow them to have several wives due to equality and the Indian constitution.
Many people would consider this an injustice to Muslims, but I don’t believe it is. Polygamy should be outlawed in India, in my opinion, because it is the only justice for Indian women. It has nothing to do with any single faith, but it is a spiritual problem. It’s difficult for a woman to share her husband with another woman, just as it’s difficult for a man to accept his wife being with another man.
In recent times, several petitions were filed challenging the constitutional validity of polygamy. The petition wants the court to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional and violative of Articles 14, 15, and 21 of the Constitution, insofar as it seeks to recognize and validate the practice of polygamy and nikah halala.
It is suggested that the practice of Polygamy allowed in Muslim Law should be abolished. In our research, we have seen that how the practice of Polygamy does not align with the Constitutional values of India and how this practice is highly discriminatory to women violates Article 14 and Article 15 of the Indian Constitution. Also, the practice of Polygamy is highly detrimental for women and children. The polygamous women have to suffer through feelings of anxiety, neglect, and jealousy. They also suffer from various kinds of mental health issues. not only women but children living in polygamous families also suffer from various academic, social, and mental health issues. So we can see how this practice of polygamy is seriously discriminatory and regressive. Polygamy is seriously patriarchal which is against our constitutional values as well
The situation in India right now is that polygamy is allowed for Muslims without any restriction. We have discussed the cons of polygamy and suggested abolishing it, but if it cannot be abolished at least there should be regulation on the practice of polygamy. This was even observed in the case of Khursheed Ahmed v. State of Uttar Pradesh, where it was said that regulating marriage issues in India, especially those involving polygamy, was necessary for public order, equality, and justice.
Even most Muslim countries have a procedure to regulate polygamy so that the Husband does not arbitrarily indulge in polygamy. Turkey and Tunisia are the only Muslim country to abolish it.
Algeria allows polygamy with some conditions that the previous wife should consent to the husband’s new marriage and a court has been set up to consider whether men can meet the legal requirement of equal treatment to all wives. In case her consent has not been considered, the previous wife can initiate the proceedings of divorce.
In Morocco, A marital contract disallowing the man to take another woman is binding on him. In the absence of such a provision, the man needs to tell the appointed court about his desire to marry again, and offer evidence of his financial capacity to retain several spouses. The court summons the first partner, holds a closed-door hearing for both parties, and then determines whether or not to allow the man to marry again after stating its reasons in writing. In this case, the court will approve the first wife’s divorce petition and decide the amount of maintenance she is owed. This sum must be paid within seven days, or the man’s marriage application would be declared removed.
In Somalia, Men can only indulge in polygamous marriage if the wife is found sterile by a jury of physicians, or has an incurable illness, or has been jailed for more than two years, or has been removed from her matrimonial home for a year.
In Indonesia, a Husband must obtain his wife’s permission to marry a second time, provide evidence of his financial ability to support numerous partners, and ensure that they are treated equally.
In Egypt, when registering a marriage, the man must state whether he is already married. If he is, his first wife is told of the new relationship. She has the privilege of divorcing him, but the right to do so expires a year after she is notified.
Even in Pakistan, there is a regulation on husbands to indulge in polygamy. The Muslim Family Laws Ordinance of 1961 sets out the requirements for a man to marry again. When Bangladesh was formed in 1971, it inherited and implemented this ordinance. The man must receive permission to marry from the chairman of the Union Council, an independent local government body, according to this statute. The chairman then invites the man and his wife or spouses to appoint a delegate for reconciliation, which must be facilitated by an Arbitration Council.
The Arbitration Council decides if it is “just and appropriate” to give the man permission to marry again. The wife has the right to appeal the ruling of the Arbitration Council to the district collector. If the wife files a lawsuit, her husband could face a year in prison or a fine of Rs 5,000, or both, if the clause to obtain approval from the Union Council is breached.
we can see how even regressive and traditional Muslim countries have adopted legislation to protect women in polygamous marriages. Thus, if polygamy cannot be abolished, it is recommended that it should be regulated in order to protect the interests of Muslim women.
We primarily covered two topics in our research paper. The first was if polygamy is legally legitimate, and the second was how this tradition impacts the women and children in the household. We learned that polygamy is incompatible with our constitution since it is regressive and oppressive to women. Apart from that, we discovered that this behavior has a negative impact on polygamous women’s mental health, inducing fear, depression, and somatization. Not just that, but children from polygamous families displayed signs of poor mental health. As a result, we proposed that this activity be outlawed or at the very least regulated.as traditions are created in response to the current circumstances of the time span in question, which should be discarded when they become outdated. One such example is ‘Sati,’ which was eventually repealed when the jurisprudence behind it expired due to its extreme brutality against women, and in view of current world situations in which there is still a massive difference in world sex ratios and women are still underrepresented, Even if the laws relating to polygamy are legally valid, they should be changed because the main jurisprudential reasons given can no longer be explained in view of the present world situation.