BIGAMY UNDER MUSLIM LAW

INTRODUCTION
Marriage laws other than that of the Muslims now in force in the country prohibit bigamy and treat a bigamous marriage as void. For this reason a marriage to which any of these laws apply attracts the antibigamy provisions of the Indian Penal Code which are applicable to a bigamous marriage if it is void under the governing law for the reason of being bigamous [sections 494-495]1. It is generally believed that under Muslim Law a husband has an unfettered right to marry again even where his earlier marriage is subsisting. The rule of Muslim Law conditionally permitting bigamy in fact visualized two or more women happily living with a common husband taking a second wife after deserting the first was not Islams concept of bigamy. The Holy Quran put restrictions on it, allowing it within limits, and even within those limits subjecting it to a strict discipline. The Quran permitted polygamy subject to a strict condition that the man must be capable of ensuring equal treatment of two wives in every respect2.

For a long time past, married men whose personal law does not allow bigamy have been resorting to the unhealthy and immoral practice of converting to Islam for the sake of contracting a second bigamous marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved. The Islamic marriage, whether it be the first marriage of the male or whether it is after another existing marriage in conformity to Islamic Law, would be recognized within the plural marriage limitation of four female spouses as allowed by Islam.3 Bigamy and polygamy is allowed in Islam and the marital contract of such marriages would be executed and valid immaterial of any civil provisions that prevent the same and immaterial whether such forms of legislature are enacted within Muslim or Arab States. The law of Allah reigns supreme in Islam and is held by a Muslim to be the final authority.4 Except for Islam, all personal law statues in the country impose monogamy as a rule, and any marriage performed in contravention of the provisions imposing monogamy, is illegal. In fact, such marriage is void under almost all statues and does not establish any relationship of husband and wife between the parties. So far as Muslim law is concerned , while a male may legally have up to four wives at a time, a Muslim woman cannot remarry during the subsistence of first marriage.5 A Mahomedan may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. As regards Muslim females ,it
1 2 3 4 5

lawcommissionofindia.nic.in/reports/report227.pdf Ibid www.fatwa.org.za/definition_islamic_marriages.htm Ibid Available at LexisNexis student series

is not lawful for a Mahomedan woman to have more than one husband at the same time. A marriage with a woman who has her husband alive and who has not been divorced by him, is void. A Mahomedan woman marrying again in the life time of her husband is liable to be punished under section 494 of the Indian Penal Code, 1860. Children of such marriage are illegitimate, and cannot be legitimate by acknowledgement either6.

PENAL LAW ON BIGAMY Bigamy in general

As regards the Muslims, the IPC provisions relating to bigamy apply to women since Muslim law treats a second bigamous marriage by a married woman as void but not to men as under a general reading of the traditional Muslim law men are supposed to be free to contract plural marriages. The anti-bigamy provisions of the Indian Penal Code would not apply also to tribal men and women if their customary law and practice does not treat their plural marriages as void. It has been judicially affirmed that Section 494 of the Indian Penal Code will not apply to members of Scheduled Tribes unless the tribal law applicable to a case treats a bigamous marriage as void.7 Nature of offence In Narotam Singh v State Of Punjab8, the offence under Section 494 of the Indian Penal Code is noncognizable, bailable and compoundable by the aggrieved spouse with the permission of the court. That the offence is compoundable by mutual consent of the parties was affirmed. In the State of Andhra Pradesh, however, by a local amendment of 1992 the offence under Section 494 was made cognizable, nonbailable and non-compoundable. The offence under Section 495 of the Penal Code is non-cognizable, bailable.9

BIGAMY UNDER MUSLIM PERSONAL LAW

In traditional law It is generally believed that under Muslim law a husband has an unfettered right to marry again even where his earlier marriage is subsisting. On a closer examination of the relevant provisions of the Qur'an and the other sources of Islamic law, this does not seem to be the truth. The rule of Muslim law conditionally permitting bigamy in fact visualized two or more women happily living with

6 7 8 9

Mulla, principles of Mohamedan Law,1972,p. 257, para 25 Bigamy by conversion, lawcommissionofindia.nic.in/reports/report227.pdf AIR 1978 sc 1542 lawcommissionofindia.nic.in/reports/report227.pdf

a common husband taking a second wife after forsaking or deserting the first was not Islams concept of bigamy10. If bigamy means forsaking of the first wife without divorcing her and bringing in a new wife, the Quran certainly does not permit it. In Muslim law bigamy envisages two women happily married to the same man actually living with him and getting from him equally all that a wife can expect from her husband. Bigamy of the type now prevalent in India in which the first wife is wholly forsaken and thereby tortured and a second wife is allowed to usurp her place in the husbands home is not approved anywhere in Islamic. The Dissolution of Muslim Marriages Act 1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife; but there is no law under which a mans right and capacity to contract a second marriage can be examined by anybody before he enters upon such a course of action. In India bigamy is not very common among the Muslim and cases of men having more than one wife at a time are few and far between . The Muslim society of India in generally looked down upon in and outside his family11. In khatoon v yaamin12 , the Supreme Court of India has held that the provision of section 125 of the Code Of Criminal Procedure 1973 allowing separate maintenance to a wife on the ground of her husbands cruelty applies to Muslim women whose husbands contract a second bigamous marriage. In Begum Subhanu v Abdul Ghafoor13, the Supreme Court has severly criticized the practice of bigamy and observed that there is no difference a second wife and a concubine.

BIGAMY BY NON- MUSLIMS ON EMBRACING ISLAM

Bigamy by conversion viz. a second marriage by a married non-Muslim man after conversion to Islamis a common practice in India. As regards converts to Islam opting for bigamy, their conversion must be judged by the Prophets general verdict saying that Effect of an action is governed by the underlying intention and so conversion by a married non-Muslim man motivated by a desire to have another wife is of doubtful religious validity. But even where conversion seems to be genuine, it cannot be a license for indulging in bigamy by deserting the first wife in violation of Islams insistence on treating co-wives with unexceptional equality and equal justice.14 In Abdullah Khan15, has taken the view that a Muslim wife will not be justified in refusing to live her husband on account of his marrying a second wife. The Court said that The Muslim women will have no justification to refuse to live with her husband simply because he has contracted marriage with another wife. This rule would be applicable only to Muslim married women and not to Hindu women who have
10 11 12 13 14 15

Ibid

lawcommissionofindia.nic.in/reports/report227.pdf AIR 1982 SC 853 AIR 1987 SC 1103 lawcommissionofindia.nic.in/reports/report227.pdf Abdullah Khan V. Smt. Chandni, AIR 1956 Bhopal 71, BOOK- M.A.WANI, Maintenance rights of Muslim Women

been given a right to separate residence and maintenance, under the Hindu Married Womens Right to separate Residence and maintenance Act 1946. But a Muslim woman has no such right and she must submit to the second marriage, unless the husband neglects to maintain her. This judgement supports the view that in order to determine whether a wifes refusal to live with her husband just or reasonable, personal law (Islamic law in this case) is to be taken into consideration. The above court reiterated the same view and refused to grant maintenance order in favour of a wife who had refused to live with her husband on the ground of his marrying a second wife. On the other hand, the Allahabad High court followed the view that a Muslim wife who resides separately from her husband on his contracting a second marriage is not disentitled to claim her statutory right to maintenance under Cr. P.C.16. The court emphasized that fact that this is an independent right under section 488 and is not affected by any provision of the wifes personal law. In Baddruddin the court made it clear that polygamy is only permitted in Islam .it is not a fundamental right of a muslim to have four wives ;it can , therefore , be said that the provisions of law in favour of monogamy are not violative of Art. 25 of the Indian Constitution. Moereover, the shariat Act, 1937 does not affect the provisions of section 488 of Cr.P.C. The husband in this case is liable to pay separate maintenance to his wife on the sole ground that he has taken the second wife.

JUDICIAL RULINGS ON BIGAMY BY CONVERSION

There has always been a simmering discontent in the judiciary regarding the tendency of converting to Islam for the sake of contracting a second bigamous marriage and the Court have tried to control it In Vilayat Raj v Sunila17, Justice Leela Seth of the Delhi High Court had decided that the Act would continue to apply to a person who was a Hindu at the time of marriage despite his subsequent conversion to Islam and that he could still seek divorce under the Act (except on the ground of his own conversion).18 In In re P Nagesashayya19, Justice Bhaskar Rao ofAndhra Pradesh High Court severely criticized the unhealthy practice of bigamy by conversion and observed that the old rule that the motive behind conversion could never be questioned had to be rejected at least in the cases of conversion coupled with bigamy.In Smt. Sarla Mudgal v Union of India20 ,the Supreme Court decided that every bigamous
16 17 18 19 20

Badruddin v Aisha Begum(1957)AII. L.J. 300; Sarwari v. Shahid Mohammad(1957)AII. 255 AIR 1983 Delhi 351 lawcommissionofindia.nic.in/reports/report227.pdf (1988) Mat LR 123 (1995) 3 SCC 635

marriage of a Hindu convert to Islam would be void and therefore punishable under the Indian Penal Code. The court observed that "Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law".21 As regards the logic by which a married non-Muslims second bigamy marriage contracted after conversion to Islam could be treated as void under the Hindu Marriage Act, the court argued as It is no doubt correct that the marriage solemnized by a Hindu husband after embracing Islam may not strictly be a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression void for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the section. On the other hand the same expression has a different purpose under Section 494 IPC and has to be given meaningful interpretation. The expression void under Section 494 IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494 IPC. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494 IPC22. Any act which is in violation of mandatory provisions of law is per se void. The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-by to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal23. The court further observed that the second marriage of an apostate-husband married under the Hindu Marriage Act would be in violation of the rules of equity, justice and good conscience, as also those of natural justice. The court concluded that The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation, we have given to Section 494 IPC, would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other24.

21 22 23 24

lawcommissionofindia.nic.in/reports/report227.pdf Ibid Ibid Ibid

In Lily Thomas v Union of India (2000) 6 SCC 227 the court observed.The grievance that the judgment of the Court amounts to violation of the freedom of conscience and free profession, practice and propagation of religion is also far-fetched and apparently artificially carved out by such persons who are alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of conscience and propagation of religion. Freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon a similar freedom of other persons. Under the constitutional scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit this belief and idea in a manner which does not infringe the religious right and personal freedom of others. It was contended in Sarla Mudgal that making a covert Hindu liable for prosecution under the Penal Code would be against Islam, the religion adopted by such person upon conversion. Such a plea raised demonstrates the ignorance of the petitioners about the tenets of Islam and its teachings25 In this case the court said that Even under the Muslim law plurality of marriages is not unconditionally conferred upon the husband. It would ,therefore, be doing injustice to Islamic law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The violators of law who have contracted a second marriage cannot be permitted to urge that such marriage should not be made the subject-matter of prosecution under the general penal law prevalent in the country26

25 26

lawcommissionofindia.nic.in/reports/report227.pdf Ibid

CONCLUSION
bigamy conflicts with true Islamic law in letter and spirit and added that the popular perception that Muslim law in India allowed men to take four wives was faulty.27 All said and done, the Supreme Court of India settled the law once for all in Sarla Mudgal that was affirmed in Lily Thomas case of 2000. This effort and approach of supreme court should be appreciated. The verdict that a married non-Muslim even on embracing Islam cannot contract another marriage without first getting his first marriage dissolved is undoubtedly in conformity with the letter and spirit of Islamic law on bigamy.28

Bigamy is prohibited in express terms by the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Parsi Marriage and Divorce Act, 1936. Under these statues, a marriage during the subsistence of an earlier marriage is explicitly void. Under the Christian law: 1. The Indian Divorce Act, 1869 provides that a bigamous marriage may be annulled by a decree. 2. Certificate of marriage under the Indian Christian Marriage Act, 1872 can be given only when neither of the parties have a husband or wife living. The Muslim Law permits a husband to have up to four wives at a time ,but a wife is enjoined to be monogamous. Bigamy is a crime punishable under the provisions of the Indian Penal Code, 1860. The section however, would not apply where bigamy is not void under the personal law, Muslim.

While the Muslim clergy have been quick to come to the defense of bigamy and polygamy within Muslim law the truth is that, in practice, even the Muslim men do not use bigamy and polygamy in the spirit that it was meant to be. Many of the religious clergy have been quick to explain the beginnings of the practice - at a time of war when women widows and orphans outnumbered men necessitating such a practice. The point that seems to be missed is that the practice was introduced as an adaptation to the circumstances. Perhaps it is time for this practice to be reviewed according to the present circumstances.29

27

http://www.defence.pk/forums/current-events-social-issues/31251-bigamy-against-true-islamic-law-says-lawpanel.html,Article on Bigamy against true Islamic law Dhananjay Mahapatra

28

lawcommissionofindia.nic.in/reports/report227.pdf ,Bigamy by conversion http://www.rhrealitycheck.org/blog/2009/10/05/bigamy-conversion-and-womens-rights-in-india

29

Multiple marriages have socially and legally punished women rather than men. The Bigamy Law has been under cloud for some time especially since the Supreme Court passed a decision that women in substantially long live-in relationships should be given the same rights as a legally wedded wife. This was to protect the second wife who under the bigamy law loses all rights since the marriage is considered null and void in the absence of the dissolution of the former. Besides, in the event of the death of the spouse the family often disinherited them since the marriage would not be legally recognized. And with uneducated women very often duped into such marriages or unable to get out of them for fear of ostracism, social boycott and stigma continuing to live within such a legally tenuous alliance, this was the protection that the courts were offering.30 But conversions are merely a symptom of a much larger problem that exists, irrespective of religious affiliations, in communities which see women as either commodities or unequal entities in the social hierarchy. Neither is bigamy common only among the Muslim community and nor is there enough evidence to suggest that every Muslim man who enters a bigamous relationship does equal justice by way of social and legal rights to all his spouses as stipulated by their personal law. Most of the times the women are simply deserted, left to fend for themselves and their children. The irony is that despite the fact that progressive groups both within and outside Muslim society in India do not favor bigamy, religious leaders continue to block legislative reform. There have been instances of demands that Indian Muslim girls be exempted from the provisions of the law restraining child marriage. And it is against this background that there once again lies the potential of the issue trickling down to one of religious sensitivities over womens rights.31