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Practices of Polygamy Under Muslim Law in India

Although polygamy being a prohibited practice as per the Indian laws but also the exception to this ban as Muslim personal laws allows the practice of polygamy. Muslim marriage laws differ vastly from the marriage laws of other religions. This article will explain all about marriage laws that a Muslim in India needs to know about. Marriage in Islam, or Nikah, is not a sacrament (as in Hinduism), but a civil contract between a man and woman to live as husband and wife. From a religious perspective, the Muslim marriage act in the Indian constitution is also a devotional act, i.e., ibadat. The Prophet is reported to have said that marriage is obligatory (wajib) for every physically fit Muslim, that marriage is equal to jihad (holy war) and that he who marries completes half his religion, while the other half is completed by leading a virtuous life. Other schools of thought prescribe that the man must also have the means to earn a lawful livelihood, to pay Mahr and to support his wife and children.

The verse which allows polygamy was revealed after the battle of Uhud in which many Muslims were killed, leaving widows and orphans for whom due care was incumbent upon the Muslim survivors.
The translation of the verse is as follows:
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…[1]

From this verse a number of facts are evident:
  1. That polygamy is neither mandatory, nor encouraged, but merely permitted
  2. That the permission to practice polygamy is not associated with mere satisfaction of passion. It is rather associated with compassion toward widows and orphans, a matter that is confirmed by the atmosphere in which the verse was revealed.
  3. That even in such a the situation, the permission is far more restricted than the normal practice which existed among the Arabs and other people at that time when many married as many as ten or more wives.
  4. That dealing justly with one’s wives is an obligation. This applies to the house, food, clothing, kind treatment. etc., for which the husband is fully responsible. If one is not sure of being able to deal justly with them, the Quran says: then(marry) only one. [2]
  5. This verse, when combined with another verse in the same chapter, shows some discouragement of such plural marriages.

The other verse plainly states:
You are never able to be fair and just as between women even if it is your ardent desire…[3]

The requirement of justice rules out the fantasy that man can own as any as he pleases. It also rules out the concept of secondary wife, for all wives have exactly the same status and are entitled to identical rights and claims over their husbands. It also implies, according to the Islamic Law, that should the husband fail to provide enough support for any of his wives, she can go to the court and ask for a divorce.

The verse says Marry, not kidnap, buy, or seduce. What is marriage as understood in Islam? Marriage in Islam is a civil contract which is not valid unless both contracting parties consent to it. Thus no wife can be forced or given to a husband who is already married.

I is thus a free choice of both parties. As to the first wife:
  1. She may be barren or ill and see in polygamy a better solution than divorce.
  2. She may divorce him (unilaterally) if he is married to a second wife provided that the nuptial contract gives her the right of unilateral divorce (Ismah).
  3. She can go to court and ask for a divorce if there is evidence of mistreatment or injustice inflicted upon her.

Constitutional Validity
Art. 14[4] of the Constitution is a synthesis of the two principles, equality before the law and equal protection of the laws.

Equal protection of the laws‘ is a constructive idea that commits the State to give uncommon treatment to people apathetic regarding build up fairness among all. It ensures correspondence under the watchful eye of the law and equivalent security of the laws inside the domain of India.[5] The rule is that the like ought to be dealt with the same and not excessively dissimilar to ought to be dealt with the same. The equivalent or uniform treatment of unequals is as terrible as the inconsistent treatment of equivalents. Separate treatment is regularly required for the changing needs of various classes of society.

From the very idea of the general public, there ought to be various laws in better places and the Legislature controls the approach and authorizes laws to the greatest advantage of the wellbeing and security of the State. Actually, indistinguishable treatment in inconsistent conditions would add up to imbalance. In this way, a sensible grouping isn't possibly allowed yet is vital if society is to advance. Grouping to be sensible, there must be a generous reason for making the arrangement and there ought to be a nexus between the premise of order and the object of the statue viable. It must be established on significant contrasts which recognize people assembled from those kept separate from the gathering and such differential characteristics must bear an equitable and sound connection to the item tried to be accomplished.

Section 494[6] of IPC makes bigamy a criminal offence, but section 2[7] of Shariat Act allows the application of polygamy on Muslims. also, Muslim women aren't permitted to practice polygamy which brings about discretionary and preposterous order exclusively dependent based on religion and sex. In this way, balance ensured under Article 14[8] is disturbed and then again, it is on the side of the legitimacy of Muslim polygamy.

The practice of polygamy is protected under Art.25[9]:
As per the esteemed Constitution, none of the rights guaranteed are absolute. They are subject to certain restrictions. Sometimes, the Constitution itself imposes the restriction. In others, the Parliament has the power to make the restriction. In the present case, the Constitution has imposed the restriction. In order to exercise the fundamental right guaranteed under Art. 25[10], a restriction is placed on Art. 14[11] which is also a fundamental right. Classification based on religion has been permitted in several cases by the Hon‘ble Courts and by the constitution itself. It was held that classification enshrined in religious practice which is saved by Arts. 25[12] and 26[13] of the Constitution is not a violation of Art. 14.[14]

The principle of equality does not mean that every law must have universal application, as the varying needs of different classes of persons often require different treatment. Therefore, the principle provides the State the power to make classifications with a legitimate purpose.[15]Different treatment does not per se constitute a violation of Art. 14. It is in violation only when the classification is unreasonable.[16] Every classification in some degree is likely to produce inequality and mere production of inequality is not enough.[17]

Hindus, as well as Muslims in India, have their own personal laws that are based upon their religious texts and embody their own distinctive evolution and background. Personal laws can be defined as The law that governs a person's family matters, regardless of where the person goes.[18] This shows that matters regarding marriage and divorce are personal laws and are protected under Art. 25[19] of the Constitution and also that this is the matter of the Legislature as this falls under the third list item 5. The practice of polygamy is clearly well within the reasonable restrictions of Article 25[20] of the Constitution and does not violate public morality, peace and public health. Hence, the judiciary cannot step into the ambit of the legislature.

Muslim Women Under Polygamy
Polygamy is a complex phenomenon and a product of power relations, with deep cultural, social, economic, and political roots. Despite being banned in many countries, the practice persists and has been associated with women's marginalization and mental health sequelae.
Dr. Rana Raddawi, associate professor in the department of English at the American University of Sharjah, is to publish a research paper examining how women in polygamous marriages feel, which proved that Women in polygamous marriages often suffer from negative emotions.[21]

Also in a study by the Cambridge Scholars showed that polygynous women report a higher prevalence of somatization, depression, anxiety, psychoticism and psychiatric disorder in polygynous wives as well as reduced life and marital satisfaction, problematic family functioning and low self-esteem as compared to monogamous women. The identified studies were of mixed methodological quality, but generally suggest a more significant prevalence of mental health issues in polygynous women.[22]

Polygamy in women not only have mental side-effects on the life of the women but physically also this hits them hard because many time this has been observed, that domestic violence is more common in these cases and due to which in some cases it leads to Battered Women Syndrome[23] making the women hostile and unfit to live in the normal conditions, also chances of enmity within the family is commonly observed in these cases which in some cases lead some disastrous crimes and this was firstly acknowledged in an English case of R v Ahluwalia [24] where the court also mentioned that the phycological pressure of losing one’s husband to another woman also impact the mental health of a woman. Polygamy also leads to men more easily giving divorce to women and this also promotes the mentality of treating women as a thing of possession.
Affects on the women’s Family

In many cases, it has been observed that the hostility among the siblings and against the parents is much more than a monogamous woman’s family and also the disputes between the members related to the property and other materialistic possessions.

Misuse of Muslim Polygamy Law
One of the issues with this law is that it is misused by the men and to do multiple marriages, especially by converting into Islam this issue was addressed by the supreme court in the case of Sarla Mudgal v. Union of India [25], that the second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC. Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice.

Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void .

Current Developments
In 2000, the United Nations Human Rights Committee reported that polygamy violates the International Covenant on Civil and Political Rights (ICCPR), citing concerns that the lack of equality of treatment concerning the right to marry meant that polygamy, restricted to polygyny in practice, violates the dignity of women and should be outlawed.[26] Specifically, the reports to UN Committees have noted violations of the ICCPR due to these inequalities[27] and reports to the General Assembly of the UN have recommended it be outlawed.

In a case of 2015 [28], the Supreme Court of India stated that the Muslims like every other community in India have the right to follow their religion but in terms of equality and as per the constitution of India, those rights don’t allow them to have multiple wives.

Many would see this as an injustice to the Muslims but I don’t think it is. I believe that banning polygamy in India is the best justice for women in India. It is nowhere relevant to any particular religion but it’s a question of morality. As a man couldn’t bear his wife being with another man, similarly it is not easy for a woman to share her husband with another woman either.

The judgment came from Supreme Court Justices T.S. Thakur and A.K. Goel that said:
What was protected under Article 25 (right to practice and propagate any religion) was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not an integral part of religion and monogamy was a reform within the power of the State under Article 25.

Although the judgment was ruled against a Muslim opposing the tradition where they are allowed to have multiple wives, the Justices also ruled that for public order, equality and justice in India, it was essential to regulate marriage issues within the country especially those dealing with polygamy practices.

The ruling came against a Government employee who was fired for misconduct after it was found that he had a second marriage despite being already married. The judgment was supported by the fact that no religion is bigger than Indian laws and polygamy isn’t an important practice in any religion in India.

As per the India Times report,[29] Khursheed Ahmad Khan, the accused who was fired from his government job, was employed as an irrigation supervisor. The details of his second marriage came out in the open when the sister of his first wife filed a complaint with India’s National Human Rights Commission.

The judgment further added:
As regards the charge of misconduct in question, it is patent that there is no material on record to show that the appellant divorced his first wife before the second marriage or he informed the Government about contracting the second marriage. In the absence thereof, the second marriage is misconduct under the Conduct Rules.[30]

This is the first time that Indian law has ruled out against an unnecessary or immoral practice that is shielded through religion by certain authorities irrespective of the fact that polygamy has no connection with any religion in India. Polygamy is an injustice to women and must be banned completely in India. Also, the law must be the primary religion for every Indian citizen beyond any other religion they practice.

The view expressed by the Law Commission in its unanimous 227th report (2009) presented to the government that traditional understanding of Muslim law on polygamy is gravely faulty and conflicts with true Islamic law in letter and spirit,[31] said that since polygamy is allowed in the Muslim personal laws so it could be not be banned but needs to be critically reviewed.

CONCLUSION
Traditions are made looking to the present conditions of that particular time period and should be dropped when they become redundant, one such example is ‘Sati’ which was finally abolished when the jurisprudence behind it got expired due to its excessive cruelty on women and seeing the current world scenarios where there is already a huge disparity in world sex ratios and already women are less in numbers. The laws related to polygamy should be amended even if they are constitutionally correct because the major jurisprudential reasons given are now could not be justified if seeing the current world situation.



BIBLIOGRAPHY:
1.

Acts/ Regulations/ Rules Referred
i. Constitution of India, 1950
ii. Indian Penal Code, 1860
iii. Hindu Marriage Act, 1955
iv. The Muslim Women Act, 1986
v. Shariat Act, 1937
vi. Dissolution of Muslim Marriage Act, 1939
vii. Muslim Personal Law Application Act, 1937

2. Books
1. Indian Constitutional Law, MP Jain(8th Edition, 2018), Lexis Nexis
2. Principles of Mahomedan Law, Sir Dinshaw Fardaunji Mulla (22nd Edition , 2017), Lexis Nexis
3.Black‘s law dictionary (10th Edition, 2014)

3. Websites and Articles Referred:
i. Zawn Villines, Battered woman syndrome: Definition, symptoms, and getting help Medical News Today (2018), https://www.medicalnewstoday.com/articles/320747 (last visited Apr 7, 2020).
ii. The National Staff, Polygamy can negatively affect women, study finds The National (2014), https://www.thenational.ae/uae/polygamy-can-negatively-affect-women-study-finds-1.234509 (last visited Apr 7, 2020).
iii. L. D. Shepard, The impact of polygamy on women's mental health: a systematic review: Epidemiology and Psychiatric Sciences Cambridge Core (2012), https://www.cambridge.org/core/journals/epidemiology-and-psychiatric-sciences/article/impact-of-polygamy-on-womens-mental-health-a-systematic-review/2DF25B332533311338C85F827A45D6D4 (last visited Apr 7, 2020).
iv. Zawn Villines, Battered woman syndrome: Definition, symptoms, and getting help Medical News Today (2018), https://www.medicalnewstoday.com/articles/320747 (last visited Apr 7, 2020).
v. The Birlas: Empire in transition, T.N. Ninan, Chander Uday Singh, Sumanta Sen, India Today, 20 July 2013
vi. Samadhi of Ranjit Singh – a sight of religious harmony, Pakistan Today, JANUARY 16, 2016, NADEEM DAR
vii. ‘Sati’ choice before Maharaja Ranjit’s Ranis, Kanwarjit Singh Kang, 28 June 2015
viii. Modern Indian Family Law, Werner Menski, Routledge, 2013 p.194
ix. http://timesofindia.indiatimes.com/india/Polygamy-not-integral-part-of-Islam-SC/articleshow/46180105.cms
x. Henrich, The Puzzle of Monogamous Marriage, http://rstb.royalsocietypublishing.org/content/367/1589/657.full.pdf(last visited Apr 7, 2020).
xi. Athulya, Muslim Marriage Law in India: Formalities, Polygamy, Divorce, Remarriage Vakilsearch (2020), https://vakilsearch.com/advice/muslim-marriage-law-india/ (last visited Apr 7, 2020).
xii. Additional informationAcknowledgmentWe thank the women who participated in the study., Polygamy and poor mental health among Arab Bedouin women: do socioeconomic position and social support matter? Taylor & Francis, https://www.tandfonline.com/doi/abs/10.1080/13557858.2013.801403 (last visited Apr 7, 2020).
xiii. Polygamy and the Indian Law, Lawyersclubindia (2017), https://www.lawyersclubindia.com/articles/Polygamy-and-the-Indian-Law-8465.asp (last visited Apr 7, 2020).


End-Notes:
  1. (Qur’an 4:3
  2. Supra note 1
  3. (Qur’an 4: 129)
  4. Article 14, Constitution of India, 1950
  5. State of Kerala v. N.M Thomas, A.I.R. 1976 S.C. 490; Anita Kushwaha v. Pushap Sudan, A.I.R. 2016 S.C 3506; Union of India v. B. Kishore, (2011) 13 S.C.C. 131
  6. Indian Penal Code, 1960
  7. Shariat Act, 1937
  8. Supra note 4
  9. Article 25, Constitution of India, 1950
  10. Supra note 9
  11. Supra note 4
  12. Supra note 9
  13. Article 26, Constitution of India, 1950
  14. Riju Prasad Sarma v. State of Assam, (2015) 9 S.C.C. 461
  15. State of Bihar v. Balsara, (1951) S.C.R. 682 (708); Babu Lal v. Collector of Customs, A.I.R. 1957 S.C. 677; Gopichand v. Delhi Administration, A.I.R. 1959 S.C. 609.
  16. Ameeroonissa v. Mehboob, A.I.R. 1953 S.C. 91
  17. State of Bombay v. F N Balsara, A.I.R. 1951 318
  18. Black‘s law dictionary (10th Edition, 2014)
  19. Supra note 9
  20. Supra note 9
  21. The National Staff, Polygamy can negatively affect women, study finds The National (2014), https://www.thenational.ae/uae/polygamy-can-negatively-affect-women-study-finds-1.234509 (last visited Apr 7, 2020).
  22. L. D. Shepard, The impact of polygamy on women's mental health: a systematic review: Epidemiology and Psychiatric Sciences Cambridge Core (2012), https://www.cambridge.org/core/journals/epidemiology-and-psychiatric-sciences/article/impact-of-polygamy-on-womens-mental-health-a-systematic-review/2DF25B332533311338C85F827A45D6D4 (last visited Apr 7, 2020).
  23. Zawn Villines, Battered woman syndrome: Definition, symptoms, and getting help Medical News Today (2018), https://www.medicalnewstoday.com/articles/320747 (last visited Apr 7, 2020).
  24. R v Ahluwalia, (1992) 4 AER 889
  25. Sarla Mudgal v. Union of India , AIR 1995 SC 1531
  26. Equality of Rights Between Men and Women. University of Minnesota Human Rights Library; http://hrlibrary.umn.edu/gencomm/hrcom28.htm (last visited Apr 7, 2020
  27. Report of the Human Rights Committee (PDF). United Nations General Assembly; http://ccprcentre.org/wp-content/uploads/2012/11/A_63_40_Vol.I_E.pdf (last visited Apr 7, 2020)
  28. Khursheed Ahmad Khan v. State Of U.P, (2015) 8 SCC 439
  29. Kunal Anand, The Indian Supreme Court Just Told Muslims They Can't Have Multiple Wives indiatimes.com (2015), https://www.indiatimes.com/news/india/the-indian-supreme-court-just-told-muslims-they-cant-have-multiple-wives-230142.html (last visited Apr 8, 2020)
  30. Supra note 9
  31. Preventing Bigamy via Conversion to Islam – A Proposal for giving Statutory Effect to Supreme Court Rulings, 227th Law Commission Report (2009) Pg 8-9

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