Muslim polygamy and the bigamous Hindu

Barely has the dust settled down on the Supreme Court ruling in the triple talaq case that created a great deal of media hype, the apex court is once again called upon to examine the constitutional validity of other provisions of Muslim law and Muslim practices such as polygamy and nikah halala.

At one level the BJP led NDA government has projected that the Constitution bench verdict has not changed the situation for Muslim women on the ground who are still burdened with instant triple talaq, and that there is an urgent need to enact a law which will criminalise triple talaq.

On the other hand, a BJP leader from Delhi has approached the apex court with a petition to criminalise polygamy as though the Supreme court has legislative powers. Even while Muslim women themselves have gathered in large numbers to oppose the move to criminalise triple talaq, which is being foisted in their name, the recent PILs have urged the Supreme Court to strike down polygamy and nikah halala as they violate Muslim women’s right to equality and gender justice. The Delhi BJP leader, advocate Ashwini Kumar Upadhyay, who is one of the Petitioners, has sought a declaration that triple talaq is cruelty under section 498A of the IPC, ‘nikah halala’ is rape under section 375 of the IPC, and polygamy is an offence under section 494 of the IPC. Interestingly he had also filed a PIL in December, 2015, before a bench presided over by the then Chief Justice, T. S. Thakur which was hearing the suo motu reference, Re: Muslim Women’s Quest for Equality with a prayer for enactment of a Uniform Civil Code. This was dismissed on the ground that the prayer falls squarely within the domain of the legislature. His motive for filing such a petition was also questioned by the bench. Mr Ashwin Kumar appears to be extremely fond of filing PILs on contentious issues, which help to push the political agenda of his party through litigation. For instance, he has also filed a PIL to declare Hindus a minority in eight states in India as, according to him, their population is dwindling. The Supreme Court could easily have dismissed the PIL filed by Mr Upadhyay since he is not personally concerned with the issue. But there are two other petitions which are filed by Muslims, a Delhi-based Muslim woman and Hyderabad-based Muslim lawyer with similar prayers. The Delhi-based lady has urged the court to declare the Dissolution of Muslim Marriages Act, 1939 unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it fails to secure for Muslim women the protection from bigamy which has been statutorily secured for women in India belonging to other religions. She has pleaded that she is a victim of such practices herself. Her husband and in-laws tortured her for dowry and threw her out of her matrimonial home twice and that her husband had remarried without divorcing her. The police had refused to lodge FIR under sections 494 and 498A of IPC on the ground that polygamy was permitted under the Sharia. Her pleadings are confusing as torture for dowry falls squarely within the purview of section 498A, and every woman across the religious divide, can avail of it. In fact this provision is known as “anti dowry law’ though its scope is much wider. There is nothing Islamic about dowry. One wonders why she did not avail of appropriate remedy for police inaction. Again, when ousted from her matrimonial home, she did not approach the magistrate’s court under the Domestic Violence Act which secures her right of residence. It is also not her case that her husband pronounced instant and arbitrary talaq.

Confronted with the challenge of protecting the rights of Hindu 2nd wives our courts have tried to explore ways in which their rights can be secured. In 2005, in Rameshchandra Daga, the Supreme Court, while awarding maintenance to a woman whose husband had challenged the validity of their marriage on the ground of previous subsisting marriage, held: “Despite codification and introduction of monogamy, the ground reality had not changed much and that Hindu marriages, like Muslim marriages, continue to be bigamous. Though such marriages are illegal as per the provisions of the codified Hindu law, they are not “immoral” and hence a financially dependent woman cannot be denied maintenance on this ground.” As an organization providing legal advocacy and support to women of all communities we are unable to ensure the dignity and secure the rights of several Hindu 2nd wives who approach us for their basic right of maintenance. Women face extreme humiliation during court proceedings and are termed as “keeps” not just by lawyers but also by judges. The terms such as “keeps” and “mistress” are extremely derogative and violate Article 21 of the Constitution, Right to Life, a term which encompass within itself, “Life with Dignity”. The concern is that a ban on polygamy under Muslim law may result in depriving similarly situated Muslim 2nd wives of their existing rights, and reduce them to a subordinate status of “mistress” and “keeps”, terms which are alien to the Quranic Law. Nikah halala, does not have quranic sanction. It is brought in by unscrupulous Qazis to circumvent the elaborate procedure stipulated in the Quran for talaq and to validate arbitrary and instant triple talaq. Since this is already held as invalid, nikah halala has lost its relevance. In Nazma Biwi v. State of Orissa, 26 year old Nazma Biwi’s husband Seikh Sher Mohmmed pronounced instant Triple Talaq in an inebriated state but later realizing his mistake, he repented and decided to continue to live with his wife and three children. When one faction within the community opposed this move and threatened the couple, they had approached the Supreme Court. “No one can force them to live separately. An impression seems to be created that mobs have a right to take law into their hands and the police will not intervene because it is supposedly a religious matter”, ruled the bench presided over by Justice Ruma Pal in 2006.