By Faizan Mustafa
March 17, 2015
In a historic decision last month, the Supreme Court denied a Muslim man the right to have more than one wife and upheld his termination from employment for committing bigamy. The court observed that polygamy was not integral to Islam and the practice was not mandated by religion simply because it was permitted. Similarly, in 2005, the SC had boldly acknowledged that, despite codification and the introduction of monogamy, too many Hindu marriages, like Muslim marriages, continue to be bigamous. This latest SC decision is in line with the reform of Muslim personal law that it initiated three decades ago in the Shah Bano case.
In a catena of cases, the SC has held that the freedom of religion protects only those practices that constitute an “essential and integral part of religion”. Therefore, Muslim personal law can claim the protection of Article 25 only if it is established that marriage, inheritance and the other areas it covers are “essential and integral parts” of Islam. The bench was of the view that a Muslim who wants to take more than one wife is engaged in neither professing and practising nor promoting and propagating his religion. Thus the SC rightly upheld service rules that mandated that an employee can have only one wife. There is substance in the argument that though the basic source of Muslim law is the Quran and the traditions of the Prophet, the relations it regulates are not religious. They are, on the contrary, social relations well within the province of the state. Therefore, Muslim polygamy has no religious motivation.
Whether the amendment or abrogation of Muslim personal law violates the fundamental right to conserve Muslim culture depends on whether the cultural identity of Muslims rests solely on their personal law. One view is that neither polygamy nor unilateral divorce can be fully identified with Muslim culture as most Indian Muslims are monogamists and have not exercised their right to divorce. Moreover, Indian Muslim law on these subjects does not reflect the moral mores of the divine verses. The Quran permits polygamy subject to the impossible condition that the husband is able to deal “justly with his wives”. But the Indian law ignores this precondition. Considered in the context of the global history of polygamy, the precondition is more noteworthy than the permission.
The other view is that Muslim personal law is indeed part of Muslim culture. The law as culture is not a new idea; in fact, the law is both a producer and an object of culture. But prior to Islam, unrestricted polygamy was the norm. Islam limited it to four wives and specifically urged Muslims to practice monogamy.
It is illegal for non-Muslims in India to have more than one wife. In spite of this, many Hindus have multiple wives. Official reports brought out in 1974, almost two decades after the prohibition of Hindu bigamy, highlighted the shocking fact that polygamy among Hindus was higher than among Muslims (Adivasis: 15 per cent, Hindus: 5.8 per cent, Jains: 6.7 per cent, Buddhists: 7.9 per cent, Muslims: 5.6 per cent). Figures for subsequent decades are not available. The difference may appear insignificant but in real terms, it is huge — as many as one crore Hindu men had more than one wife, as opposed to just 12 Lakh Muslims. In fact, according to the 2011 Census, 66 Lakh women are still in bigamous marriages.
Several Muslim countries, including Egypt and Iran, require a man to get not only the consent of his first wife but also the approval of a court prior to marrying another woman. The Moroccan code has a provision for the court to deny permission for polygamy if injustice between “co-wives” is feared. There is a similar provision in force in Jordan. And Tunisia, in fact, had prohibited polygamy way back in 1957.
If a Hindu man deserts his lawfully wedded wife to live with another woman, the only remedy available to the aggrieved woman is divorce. However, most abandoned women may not view divorce as a viable option because of the sacramental nature of Hindu marriage and social pressures. Clandestine bigamy among Hindus has a worse effect than open polygamy among Muslims. Muslim men who have more than one wife, on the other hand, are legally bound to provide each not only residence but also proper maintenance. Thus, a Muslim woman is better off than the “second Hindu wife”, who has no legal status or rights under the law. The latter cannot even claim maintenance from her husband. In fact, in D. Velusamy (Supreme Court, 2010), the second Hindu wife was denied maintenance and held to be a “mistress”. This matter, too, needs urgent attention and intervention.
Faizan Mustafa is vice chancellor, NALSAR, Hyderabad