An untenable defence

In both religion and law, polygamy has no place.

Written by Tahir Mahmood | Updated: April 5, 2018 12:23:22 am

Polygamy, supposed to be prevalent among Muslims, has been challenged for its constitutional validity again in the apex court. Also under judicial scrutiny are archaic customs known as halala, mutah and misyar. A TV journalist told me that Muslim clerics may not mind restraints on these practices but are deeply concerned about the “attack” on polygamy. If true, their worry about polygamy is more baffling to me than the alleged indifference to other antiquated customs.

The fraudulent way halala is practised — defeating the Quranic ban on retaining in wedlock a triply divorced wife by staging her sham marriage to, and instantaneous talaq by, a confidant — is acknowledged in religious circles as a distortion. The recent Supreme Court ruling outlawing triple divorce has made it redundant. Banning mutah (so-called temporary marriage) may also not worry them since its validity is recognised only by the minority Shia sect; nor may prohibition of misyar (traveller’s stopgap marriage), which is not a local practice — some Arabs come here for this legalised prostitution that nobody can have the cheek to defend.

The plurality of wives was a pre-Islamic custom which Islam tried to reform. The Quran spoke of it in the context (and interest) of war orphans, emphatically counselling monogamy if multiple wives could not be maintained with absolute equality. Deserting one’s wife without divorcing her and bringing home a second wife — which in India happens in the name of religious right — was not Islam’s idea of polygamy. In any case, it was an exceptional permission to meet exigencies.

Over the centuries, men have interpreted Quranic references to polygamy as it suited them — forgetting its historical context and treating its mandatory preconditions as non-justiciable morals. With the global emergence of a new social order conceding the supremacy of human rights over custom and usage, the Muslim world had also awakened to its demands. Today, polygamy stands legally abolished or at least restricted in a large number of Muslim countries. How the obsolescent custom of polygamy has been tackled there need not, however, be India’s concern.

The anti-bigamy provision of the IPC makes it an offence only if the resulting bigamous marriage is void under the family law otherwise applicable (section 494). In 1860, when the IPC came into force, only Christian and Parsi laws prohibited bigamy — the provision spared over 95 per cent of the population. On the eve of Independence, provincial legislatures in Bombay and Madras prohibited bigamy for Hindus, Buddhists, Jains and Sikhs and about a decade later, the Hindu Marriage Act followed suit specifically extending IPC’s anti-bigamy provisions to all these communities. Muslims have been the only religious community (besides polygamous tribes) left out of its ambit. How can this be justified in terms of the constitutional guarantee of equal protection of laws?

The criterion for the judiciary to decide the challenge to the constitutional validity of polygamy should be whether it is an essential religious practice in Islam. That it is not is too conspicuous to be overlooked — only a minuscule number of the over 150 million Muslims in the country have kept it alive. More than Muslims, the misunderstood Islamic law is misused by others to defeat the general legal ban on polygamy. Despite contrary judicial rulings, sham conversions to Islam in search of new wives have not died out, and the bogey of love jihad is not being raised in this case.

There is an easy way to bring all citizens under the country’s general law on bigamy. Instead of questioning the essentiality of polygamy as a religious practice, eliminate from the IPC’s anti-bigamy provision the words making its application conditional on bigamy being void under the applicable family law. This general legal reform should, perhaps, not attract agitation for “tampering” with any supposedly sacred law.

The writer is a professor of law and former Chair, National Minorities Commission.

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