Provision in Islam for more thanone marriage widely misused: HC
'Was Meant To Rehabilitate War Widows In Early Times'
Rajesh Kumar Pandey | TNN
Prayagraj: Allahabad high court has observed that though Islam permitted more than one marriage under certain circumstances and with certain conditions, this permission was being 'widely misused' and it even went against the mandate of Muslim law.
Justice Arun Kumar Singh Deshwal said polygamy had been permitted, conditionally, by the Qur'an in early Islamic times for rehabilitation of widows and orphans after heavy wartime casualties but now the said provision was being misused for 'selfish purposes'.
The court was hearing petition by Furqan and two others challenging chargesheet as well as summoning order by a court of Moradabad under sections 376(rape), 495 (second marriage with concealment of former marriage) 120-B ( criminal conspiracy), 504 (insult) and 506 (criminal intimidation) of IPC.
An FIR was lodged by the opposite party no. 2 (wife) alleging Furqan married her without disclosing he was already married and that he raped her during the marriage. Furqan contended the woman admitted to marrying him after a relationship. His counsel argued no offence under Section 494 IPC would be made out against him, as under Muslim Law and the Shariat Act, 1937, a Muslim man was permitted to marry up to four times. It was also submitted that all issues regarding marriage and divorce had to be decided as per Shariat Act, 1937, which also permitted the man to get married again even during the lifetime of the previous spouse.
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It was further submitted that since the 1937 Act is a Special Act, while IPC is the General Act, the former will have an overriding effect over the latter. It was also submitted that in Muslim Law, the second marriage was not void if the first marriage was performed as per Muslim Law.
State counsel disputed this submission by contending that a second marriage performed by a Muslim man would not always be valid marriage because in case first marriage was not performed as per Muslim law but as per Special Act or Hindu Law, second marriage would be void and punishable u/s 494 IPC.
The court referred to the concept of nikah (marriage) as per Muslim Personal Law and other authorities on Muslim Law to note that a plurality of marriages is not unconditionally conferred on the husband.
The court said, if a Muslim male had married as per Muslim law, his second, third or fourth marriages were not void, hence, Section 494 IPC was also not to be invoked for second marriage, except in cases of second marriage declared 'Batil' (void) as per Shariat by Family Court.
Secondly, if first marriage was 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 second marriage is as per Muslim law, after conversion to Islam, it will be void and punishable u/s 494.
The court referred to judgment in case of Jafar Abbas, wherein it was observed that Quran forbids polygamy if purpose of marrying more than once is self-interest or sexual desire and further observed that it was for maulvis (clerics) to ensure Muslims did not abuse Quran to justify polygamy for self-interest.
In this case, the court also held there was no law which declared second marriage under Muslim law void, therefore, it would not be punishable u/s 494 IPC. On whether a second marriage contracted by a Muslim could be declared void, court opined it would be void if declared Batil (void) by Shariat, especially if performed within prohibited degree of relationship.
Thus, 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.
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