Quran Allowed Polygamy For A Fair Reason, But Men Misuse It For Selfish Purposes: Allahabad HC Bats For UCC

The Allahabad High Court has recently observed that while Islam permits more than one marriage under certain circumstances and with certain conditions, this permission is 'widely misused' even against the mandate of Muslim law. The Court underscored that Polygamy was conditionally permitted under the Quran during early Islamic times to protect widows and orphans after heavy wartime casualties, however, the said provision is now being misused by men for 'selfish purposes' Noting so, a bench of Justice Arun Kumar Singh Deshwal agreed with the suggestion given by the Supreme Court in its Judgment 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. Notably, in its order, the Court also clarified the legal position regarding multiple marriages by a Muslim male and their implications under Section 494 of the IPC, laying down the circumstances under which such marriages may or may not attract the offence of bigamy. It held: 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 I.P.C. 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 u/s 7 of the Family Court Act or by any competent court. 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 Family Court has also jurisdiction u/s 7 of the Family Court Act to decide validity of a Muslim marriage performed in accordance with the Muslim Personal Law. The Court held thus while dealing with a plea seeking quashing of the charge-sheet, cognisance and summoning orders passed against the petitioners (Furkan And 2 Others) in a case under Sections 376, 494, 120-B, 504, 506 IPC. The FIR was lodged by opposite party no. 2, alleging that applicant no. 1 (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 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 has 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 is 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. Furtmore, referring to various cases of the Supreme Court as well as of the High Courts, the applicant's counsel argued that to attract offence u/s 494 IPC, a second marriage must be void, but in Mohammedan Law, the second marriage is not void if the first marriage is performed as per Mohammedan Law. On the other hand, the AGA disputed this submission by contending a second marriage performed by a Muslim man will not always be 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 second marriage would be void and the offence u/s 494 IPC would be attracted. Against the backdrop of these submissions, the bench, 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 bench 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.” In this regard, the Court referred to the Gujarat High Court's 2015 judgment in the case of Jafar Abbas Rasoolmohammad Merchant vs State Of Gujarat, wherein it was observed that Quran forbids polygamy if the purpose of marrying more than...

Quran Allowed Polygamy For A Fair Reason, But Men Misuse It For Selfish Purposes: Allahabad HC Bats For UCC

Sparsh Upadhyay

The HC also opined that a Muslim male has no unfettered right to get a second marriage unless he can give equal treatment to all wives.

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