Tied Up In Knots
By Tahir Mahmood
2 August 2009
"Islam, which is a pious, progressive and respected religion with a rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law. The progressive outlook and wider approach of Islamic law cannot be permitted to be squeezed and narrowed by unscrupulous litigants." This was the Supreme Court of India, in its Lily Thomas ruling in 2000, reaffirming its five-year-old Sarla Mudgal judgement outlawing bigamy by married non-Muslims under the pretext of conversion to Islam. I see the law so settled by the apex court of India as a great tribute to Islamic law.
The Hindu Marriage Act of 1955 enforced monogamy, and deemed that a bigamous marriage would attract anti-bigamy provisions of the Indian Penal Code. Since then married men governed by this Act have often resorted to sham conversion to Islam for the sake of a second bigamous marriage. Two such cases made headlines in recent times. In one of these a married army physician of India serving in Afghanistan temporarily converted to Islam in order to marry an Afghan girl and, a few years later, returned to his family in India leaving her in the lurch.
In the second case a married politician and his lawyer friend, both Hindu, ostensibly embraced Islam to get married and kept on publicly claiming that they had done nothing illegal. As their marriage failed before long, the man returned to his original faith and reunited with his first wife. These, and many other similar cases, make it abundantly clear that the law settled by the Supreme Court is being observed in violation.
The true Islamic law on bigamy is gravely misunderstood, indeed by Muslims and non-Muslims alike. Both wrongly believe that it gives married men an unfettered right to marry again, which is nothing short of caricaturing a noble legal provision. Unrestricted bigamy was rampant in Arab society, which Islam had tried to contain by allowing it within carefully defined limits and subjecting it to strict discipline. Bigamy was permitted subject to a precondition that the man must be capable of treating his co-wives absolutely equally in every aspect of conjugal rights.
Clearly, throwing out the first wife without divorce and bringing in a new wife in her place was not what the Quran had envisaged. Also, noting that treating co-wives with complete equality would be no easy job, the Holy Book had added an advisory: "Monogamy would keep you away from doing injustice." The Prophet had added to it a deterrent warning: "A bigamist failing to treat his wives equally will be torn apart on the Day of Judgement." This 7th century attempt to gradually eradicate the social vice of unlimited polygamy was admirable.
The Quranic precepts, and the Prophet's warning on bigamy, apply to all Muslims born or converted. But the idea that Islam must welcome to its fold a convert whose conversion is not for the love of Islam but an obvious camouflage to play fraud on the law that otherwise governs him is indeed preposterous.
Whatever one may erroneously presume the Islamic law on the subject to be, the two Supreme Court rulings had laid down a binding law on the issue of bigamy by non-Muslims under the cover of embracing Islam. This law, however, has not percolated down to society and married non-Muslims keep on violating it on a whim. Taking cognisance of this state of affairs, the Law Commission of India thought it fit to recommend to the government that the judicially settled law of 1995-2000 be incorporated into the Hindu Marriage Act, 1955 and other statutory marriage laws of India.
The 227th report of the commission containing this recommendation did not go beyond this. Conscious of the religious sensitivities of Muslim society in respect of personal law, the commission did not touch upon misuse of the Islamic law on bigamy by born Muslims themselves, which is not unknown. Ignorant of the limited scope of its report, the Law Commission is being uncharitably criticised in Muslim religious circles. Members of these circles naively believe that their personal law, despite being distorted and misused in practice, is outside the powers and functions of all constitutional organs and advisory bodies of the state.
Seeing it as an inseparable part of Islam, they want all such organs and bodies to perpetually keep away from it. They are yet to appreciate the true position of Muslim personal law under the Constitution of India and its real place in the legal and judicial systems of the country. It will be in their own interest to acquaint themselves with the proper legal position in this regard. Till this day all constitutional and statutory bodies in India have spoken of Islamic law with respect and done their best to accommodate the religious sensitivities of the community. Persistently alienating these bodies through irresponsible criticism is an act of short-sightedness.
The writer is member, Law Commission of India.
Source: The Times of India