Many Muslim men are misusing Sharia law to have multiple wives, but cannot be punished for bigamy under the Sharia law: Allahabad HC

The Allahabad High Court has observed that the a Muslim man cannot be punished for bigamy for having more than one wife if his marriage is conducted under the Muslim law. Noting that the religious provision is being misused by Muslim men. a single bench of Justice Arun Kumar Singh Deshwal said that the legislature should consider enacting the Uniform Civil Code.

There were historical reasons for polygamy, says the HC

The court pointed out that polygamy is mentioned in the Quran only once and that too for a fair historical reason. “There was a time in history when a large number of women were widowed, and children were orphaned in primitive tribal tussles in Arabs. The Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. It was under such circumstances that the Quran allowed conditional polygamy to protect orphans and their mothers from exploitation,” the court observed. 

“It is clear that the Quran asks men first consider taking care of the orphans and only when they think they may not be able to do justice to the orphans’ interests while staying in isolation, should they consider marrying their widowed mothers, on the condition that the new family would be dealt with justly on par with the existing one,” the court added asserting polygamy in law is conditional.

Freedom of religion not absolute: HC

However, the court clarified that the offence of bigamy would be attracted against a Muslim man on keeping more than one wife if his first marriage was not conducted as per Islamic law. The court said if a man has conducted his first marriage under the Special Marriage Act, Foreign Marriage Act, Christian Marriage Act, Parsi Marriage and Divorce Act, or the Hindu Marriage Act, and he performs a second marrige after under the Muslim law after converting to Islam, then the offence of bigamy will be attracted.

The High Court said that the religious freedom under the Article 25 of the Constitution is not absolute and is subject to other provisions of Part-III including public order, morality and health. “This Court would further like to observe that Article 25 of the Constitution of India gives religious freedom to profess, practice and propagate, which also includes external overt acts of individual as per his religious faith, but this right is subject to public order, morality and health and other provisions of Part-III of the Constitution. Therefore, religious liberty under Article 25 is not unfettered and can be regulated by the State,” the court said.

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