Polygamy being ‘widely misused' against Muslim law mandate: HC

Hindustan Times

16-05-2025

The Allahabad high court has observed that though Islam permits more than one marriage under certain circumstances and with certain conditions, this permission is being 'widely misused' even against the mandate of Muslim law.
With this observation, Justice Arun Kumar Singh Deshwal said that polygamy was conditionally permitted under the Quran during early Islamic times to protect widows and orphans after heavy wartime casualties, however, the provision is now being misused by men for 'selfish purposes'.
For the above observations, the court also relied on the suggestion given by the Supreme Court in the cases of Sarla Mudgal and Lily Thomas regarding the enactment of the Uniform Civil Code in pursuance of the mandate of Article 44 of the Constitution of India.
The court also clarified the legal position regarding multiple marriages by a Muslim male and their implications under Section 494 of the Indian Penal Code (offence of bigamy) .
The court also laid down the circumstances under which such marriages may or may not attract the offence of bigamy. It held: Firstly, if a Muslim male performs his first marriage as per Mohammedan law then second, third or fourth marriage will not be void, therefore, ingredients of Section 494 IPC will not be attracted for the second marriage except in those cases where the second marriage was itself declared Batil (void marriage) as per Shariat by the Family Court .
Secondly, if the first marriage by a person is performed under Special Marriage Act, 1954, Foreign Marriage Act, 1969, Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936 and Hindu Marriage Act, 1955, and he performs second marriage as per the Mohammedan law, after conversion to Islam, then his second marriage will be void, and offence u/s 494 I.P.C. would be attracted for such marriage.
The order was passed while hearing a petition filed by Furkan and two others challenging a chargesheet as well as summoning order by a Moradabad court under Sections 376 (rape), 495 (second marriage with concealment of former marriage), 120-B ( criminal conspiracy) ,504 (insult)and 506 (criminal intimidation) of the Indian Penal Code.
The FIR was lodged by the opposite party no. 2 (wife) alleging that Furkan married her without disclosing that he was already married and that he raped her during the subsistence of such marriage.
On the other hand, the applicant contended that the informant herself admitted to marrying him after being in a relationship. His counsel argued that no offence under Section 494 of the IPC would be made out against him, as under Mohammedan Law and the Shariat Act, 1937, a Muslim man is permitted to marry up to four times.
It was also submitted that all the issues regarding marriage and divorce have to be decided as per the Shariat Act, 1937, which also permits the man to get married even during the lifetime of the spouse.
It was further submitted that since the 1937 Act is a Special Act, while IPC is the General Act, therefore, the former will have an overriding effect over the latter.
It was also submitted that in Mohammedan Law, the second marriage is not void if the first marriage is performed as per Mohammedan Law.
The state counsel disputed this submission by contending a second marriage performed by a Muslim man will not always be a valid marriage because in case the first marriage was not performed as per the Muslim law but performed as per Special Act or Hindu Law, then the second marriage would be void and the offence u/s 494 IPC would be attracted.
In the backdrop of these submissions, the court, at the outset, referred to the concept of Nikah (marriage) as per the Muslim Personal Law, and other authorities on Mohammedan Law to note that a plurality of marriages is not unconditionally conferred upon the husband.
The court further noted that while the Quran allows polygamy for a fair reason, and it is conditional polygamy, however, men use that provision today for a selfish purpose.
'There is a historical reason why the Quran allows polygamy. 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 also referred to a judgment in the case of Jafar Abbas, wherein it was observed that Quran forbids polygamy if the purpose of marrying more than once is self interest or sexual desire and further observed that it is for the maulvis to ensure that Muslims may not abuse the Quran to justify polygamy for their self-interest.
In this case, the court had also held that there is no law which declares a second marriage under Mohammedan law as void, therefore, the same will not be punishable under Section 494 of the IPC.
Going into the question as to whether a second marriage contracted by a Muslim could be declared void in any circumstances, the court opined that such second marriage would be void if same is declared by the Shariat as Batil (void marriage), especially where marriage was performed or contracted within the prohibited degree of relationship.
However, it added that the question would arise as to who will declare the second marriage of a Muslim male as Batil (void marriage) as per Mohammedan law.
In the present case, the court observed that both the applicant and opposite party No. 2 are Muslims, thus the applicant's second marriage would be valid, and no offence as afore-mentioned would be made out against him.
Issuing notice to the opposite party, the court in its order dated May 8 stayed any coercive action against the applicant and ordered to list the matter in the week commencing May 26.