Polygamy is not a religious practice but rather a social custom or usage, which the State can interfere with to ensure that Muslim women’s fundamental rights are not violated, the Union government told the Supreme Court.
“Practices such as polygamy cannot be described as being sanctioned by religion, inasmuch as historically, polygamy prevailed across communities for several centuries, including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians. It had less to do with religion and more to do with social norms at the time,” the Centre said in its written submissions filed late on Monday in the court.
“In the Holy Koran as well, it appears that the prevalent or perhaps even rampant practice of polygamy in pre-Islamic society was sought to be regulated and restricted so as to treat women better than they were treated in pre-Islamic times,” Attorney-General Mukul Rohatgi and advocate Madhavi Divan submitted.
The government said that since polygamy was a social custom and not a religious practice, it was not protected under Article 25 of the Constitution, which barred the State from interfering with “someone’s religious belief.”
“It is submitted that the practice of polygamy is a social practice rather than a religious one and therefore would not be protected under Article 25. This is true also of nikah halala and triple talaq. For the same reason, polygamy would amount to a custom or usage, which is “law” within the meaning of Article 13 and therefore subject to fundamental rights,” the Centre argued.
Since a social practice cannot be held to be an integral part of a faith and belief or an “essential religious practice,” it has to satisfy the overarching constitutional goal of gender equality, gender justice and dignity, the government submitted.
The government argued that reforms have not happened in the practices followed by the Muslim community despite clear indications. “The same has not happened for over six and a half decades and women who comprise a very sizeable proportion of the said Indian population [approximately 8% of the population of India, i.e. 96.68 million approximately, as per 2011 census] remain extremely vulnerable, both socially as well as financially,” the government pointed out.
It said gender equality and the dignity of women were “non-negotiable.”
The Supreme Court has fixed for May 11 the Constitution Bench hearings on a batch of petitions on triple talaq and polygamy .