WHAT IS POLYGAMY?
Rules of marriage in India never got concluded and this leads India to remain a land of diversity. In general, when a person is married to several women together we called it polygamy. Though polygamy is rooted in antiquity it is still permitted as a practice by several societies. The term polygamy has been derived from the Greek work polygamous where “Poly” means “many” and “gamos” means “marriage”. Basically, polygamy is a marriage of many. In many countries, polygamy is not allowed and monogamous marriages are highly encouraged. Countries like Russia, Canada, and the United Kingdom stood immensely against polygamy and still polygamy is not allowed in these countries.
In the time immemorial, polygamy was highly permitted by the Rajputs in order to have multiple wives. It was done just to seek or gain power and produce a male child. Marriage concept and its institution got changed with the change of the reign and rulers. Previously, a Hindu man could marry many other women even during the lifetime of his first wife, but if the marriage was not contacted on the basis of just cause it would be strongly criticized. In Islam polygamy has its roots in compassion that basically means to suffer together and it is also rooted within kindness. With the rise in British rule, the practice of polygamy was banned vide section 494 of the Indian Penal Code, 1860. Later on after independence, the Hindu Marriage Act of 1955 prohibited polygamy as a practice among Hindus. Muslims, however, could still have four wives.
WHAT DOES QURAN SAY ABOUT POLYGAMY?
Though polygamy is highly practised in Islam culture, it is not initiated by Islam culture. Rather it had been widespread customary practice in Pre-Islamic Arabia. Polygamy is no less than a patriarchal practice that leads to bias women, on the fact that men and women are yet not equally treated. With reference to polygamy in the Holy Quran, it has been stated in Chapter IV, Verse 3[x] one should be fair after marriage, if the man has the capability to treat all of his wives equally and make no bias to anyone then he shall proceed to have a number of wives he wants, but if he fears Or fails to deal fairly then he should marry only one woman to reduce or avoid the degree of injustice. Quran has clearly mentioned and limited the number of marriages up to four. Quran aimed at surpassing the condition of weaker sections of the society like orphans and poor.
POLYGAMY UNDER MUSLIM LAW
Article 25 of the Constitution basically deals with the practice of polygamy without violating public health, public morality and peace. Bigamy is a criminal offence according to sec 494 of IPC, but according to section 2 of the Shariat Act, the practice of polygamy is permitted, but limited to men and women are not allowed to practice polygamy. Even after such discrimination, article 25 of the Constitution protects polygamy though. Women due to polygamy are not just affected mentally rather affected physically as well and due to this domestic violence is more keenly observed.
EFFECTS OF CONVERTING INTO ISLAM
There are enormous effects of converting into Islam and it can be undoubtedly both, positive and negative as well. When we consider the positive effects of converting into Islam we come across the following points:-
- Basically, a non-Muslim convert himself into Islam and practices polygamy and their conversion is well accepted by others.
- God promises Paradise to the believer.
- One can achieve happiness, peace and many more by converting to Islam
When a non-Muslim is converted into Islam, the very person inculcates the feeling of jealousy, acceptance, rejection, disappointment, satisfaction, secularization, humiliation depending upon one’s Personal situation. During the process, that is while converting into Islam, the one who is converting themselves can be highly criticized by the Muslims for their conversion and their different cultural practices.
Undoubtedly polygamy creates injustice to both, women and children. Bias nature highly prevails in these circumstances. Therefore polygamy should not be unnecessarily practised. It should be permitted only if there is an acute necessity or else it should be impermissible. It has been clearly seen by one and all that Women and children are not properly treated rather they are mistreated and are deprived of their basic human rights. The children in between are harmed mentally, the environment around them doesn’t remain up to the level that could help in upbringing the child in a better way.
Courts have clearly acknowledged the existence of the practice of polygamy in Indian society and consider it a social-ill that needs to be reformed. The Bombay High Court in State of Bombay v. Narasu Appa Mali rejected the argument that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was discriminatory. The Court held that a State Legislature is perfectly competent to bring upon legislation for social welfare and reform even if it infringes upon Hindu religion or practice.
CASES RELATING TO POLYGAMY IN ISLAM
Itwari v. Smt Asghari: Judgement held was that “The High Court of Allahabad held that the appeal had been filed with mala fide intention and was thus dismissed it under Order 41, Rule 11, Code of Civil Procedure, 1908. In concurring the opinion of the District Judge that it will be inequitable to compel the first wife to live with such a husband.”
In the case of Sarla Mudgal v. Union of India, the court held that the second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC. Looking from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice.
Muslim men are permitted to marry four wives at the same time from the ancient times but this practice of wives more than one in number should be banned or not permitted as it is Not a right practice to be practised in the society as it leads to discrimination between men and women by not providing women equal opportunity, children born out in polygamy marriage suffers mentally and many more.
It has been observed that polygamy became a status symbol and was not common amongst the lower strata of society who were poor. Therefore, the shortcomings of polygamy outweigh its advantages. Consequently, polygamy should only be encouraged if there are genuine reasons to practice it.
Author(s) Name: Priyanci Prasad (JEMTEC School of Law, GGSIPU)