Situating law in the land

Instead of a blanket ban, the Supreme Court can delegitimise polygyny in India for not being in consonance with the Koranic procedure, just as it invalidated instant triple talaq in the Shamim Ara case

Updated - October 28, 2016 01:34 am IST

Published - October 28, 2016 12:15 am IST

With the submission of the Bharatiya Janata Party-led Central government’s affidavit in Supreme Court a few days ago, the debate on Muslim personal law has intensified, prompting even the Prime Minister to join the fray in support of the constitutional rights of Muslim women. Although the government’s affidavit did not specifically ask the court to “ban” or “abolish” instant talaq or polygamy, and concedes that “only some women are directly and actually affected by these practices”, it nevertheless tells the highest court that “the issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality”.

The government affidavit seems to have ignored the fact that in the Shamim Ara case (2002) the Supreme Court, relying on several earlier rulings, had invalidated instant triple talaq and, by that decision, rendered even halala redundant and equally illegal. Halala is the un-Islamic temporary marriage a victim of instant talaq is forced to undergo with another man to remarry her first husband. As is obvious, the delegitimisation of instant talaq makes halala unnecessary. An overview of the Shamim Ara judgment and some of the rulings cited in it can be found in Justice K. Kannan’s article “Frames of reference”, published in this newspaper on October 21.

Polygyny in the Islamic context

Polygamy includes both polygyny and polyandry. The Koran categorically prohibits polyandry and therefore, it is polygyny that the Supreme Court will be ruling on in the present case.

Polygyny, which finds mention just once (4:3) in the Koran, is one of the most misunderstood concepts of Islamic law. It has been abused over the centuries by Muslim men without appreciating the spirit behind its exceptional sanction, which is clearly contextualised in the historical conditions of the time when a large number of women were widowed and children orphaned as Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. Even a simple reading of verses 4:2, 3 and 127 will show that it was under such circumstances that the Koran allowed conditional polygyny, mainly to protect orphans and their mothers from an exploitative society.

Verse 4:2 warns caretakers against devouring the assets of orphans either by merging them with their own or substituting their “worthless properties for the good ones” of the orphans. And, if the caretakers “fear that they may not be able to do justice” to the interests of the orphans in isolation, the next verse allows them to marry their widowed mothers — on the condition that the new family would be dealt justly on a par with the existing one. For those who are not up to it, the instruction of the Koran is: “Then [marry] only one.”

It is clear from these arguments that verse 4:3 is not a hedonistic licence to marry several women. Besides, there are several statements in the Koran which describe husband and wife as “spousal mates” created to find “quiet of mind” (7:189) and “to dwell in tranquility” (30:21) in the companionship of each other. Indeed, verse 7:189, which traces the origin of man from a single cell ( nafsan waahida ), talks of the wife in the singular as zaujaha , thereby emphasising monogamy. Thus, marriage according to the Koran is the emotional bonding of two minds which cannot be achieved simultaneously with more than one woman.

If despite this, the Koran permitted conditional polygyny, it was, as stated above, only as a social remedy to alleviate the sufferings of women and orphans in calamitous situations. This can be appreciated from the dreadful state of affairs in West Asia today. In November 2011 The New York Times , citing Iraqi government sources, reported the presence in that country of one million war widows — and at least an equal number of orphaned children — who want to remarry for security and companionship; but there aren’t enough men.

Thankfully, as such conditions do not exist in India, polygyny is not permissible here. The Supreme Court would therefore be justified in delegitimising polygyny practised for reasons other than those mentioned in the Koran just as it invalidated instant triple talaq in the Shamim Ara case for not being in consonance with the Koranic procedure. Indeed, the court’s imposition of fetters on polygyny would serve as a de facto ban on the practice, thereby rendering unnecessary the need for a blanket ban — sought by some Muslim groups — which would be politically inexpedient in the prevailing circumstances.

Muslim polygyny v. Hindu bigamy

From another point of view too, a total ban on polygyny may not be advisable. Latest census data and impact studies conducted by researchers such as Flavia Agnes show that bigamy continues to prevail among the Hindus despite the Hindu Marriage Act, 1955 outlawing it, and Section 494 of the Indian Penal Code (IPC) declaring it a punishable offence.

Chart C-3 of the 2011 Census containing details on marital status by religious community and sex provides the shocking information that among Hindus (not including Sikhs, Buddhists and Jains) married women outnumber married men by 43.56 lakh. To be exact, out of 47,13,97,900 married Hindus, 23,35,20,803 are males and 23,78,77,097 females, thus exceeding the males by 43,56,294. The only inference that could be drawn from these figures is that 43,56,294 Hindu women are in bigamous relationships with Hindu men unless of course it can be proved they are mostly married to non-Hindus.

One reason for this could be the fact that Section 198 of the Code of Criminal Procedure does not allow any court to take cognisance of an offence punishable under Chapter XX of the IPC (which includes Section 494) except upon a complaint made by the “person aggrieved” by the offence. For a male bigamist, the first wife is the aggrieved person, and if she chooses not to lodge a complaint, her husband cannot be prosecuted.

However, the bigger issue here is that the “second wife” cannot claim rights on a par with the first wife under the Hindu law even if the first wife consents to her husband taking another wife and the “second wife” is informed of the existence of the first before marriage. This seriously compromises the equality guaranteed to her as a citizen under Article 14, and the right to life with dignity assured under Article 21 of our Constitution.

It also brings into question the constitutionality of laws that discourage women from making informed choices; and when they do, penalise them for exercising their human agency in the name of undefined societal morality!

Factoring in social reality

The consolation is that our courts are fully aware of the flaws in the Hindu law and have tried to overcome them through deontological interpretations. In the Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga case of 2004, the Supreme Court, while justifying the granting of maintenance to a second wife and her daughter, observed: “…a bigamous marriage may be declared illegal being in contravention of the provisions of the [Hindu Marriage] Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent.” This view was fully endorsed in 2013 by another Supreme Court Bench in the matter of Badshah v. Sou. Urmila Badshah Godse & Anr where it was emphasised that “just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law.”

Unfortunately, ill-informed calls for the abolition of polygyny among Muslims are not based on an appreciation of the change in social reality today which is manifesting itself in the form of a renewed emphasis on individual rights especially with regard to sexual orientation and preference.

Rights of the ‘second wife’

If, in the light of the foregoing arguments, a blanket ban on Muslim polygyny is being opposed, it should not be construed as an expression of support for the practice. The point that is sought to be made here is this: if polygyny is abruptly declared illegal for Muslims, without first identifying and addressing the causes of failure of Hindu law in preventing bigamy, it would end up creating the same confusions in the Muslim law, especially with regard to the rights of the “second wife” under Articles 14, 15 and 21.

Therefore, pending examination of the Hindu bigamy law through the prism of these facts, the most judicious option, insofar as Muslim polygyny is concerned, would be to fetter it with Koranic conditions as discussed above.

This should not be a difficult decision given the fact that eight out of the 10 countries cited approvingly in the government’s affidavit have regulated polygyny by making it conditional. It would therefore be improper to hold up these countries as examples in the case of instant triple talaq — which all 10 have invalidated — while ignoring 80 per cent of them on polygyny.

A. Faizur Rahman is an independent researcher and secretary-general of the Chennai-based Islamic Forum

for the Promotion of Moderate Thought.

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