WIFE’S CONSENT FOR POLYGAMY UNDER MUSLIM LAW

INTRODUCTION

Marriage can be regarded as the union of spouses in a consensual and contractual relationship recognized by law, providing rights and obligations towards each other. However, there are some instances where a certain person in a marital bond enters into another marriage during the lifetime of the other partner, which is also known as the offence of committing the offence of Bigamy. Bigamy is punishable under Section 494[1] and Section 495[2] of the Indian Penal Code.  Nowhere in the laws and the provisions given for the protection of Muslim women have mentioned the security of the wife be it mentally, physically or emotionally in regards to the husband having multiple wives. The consent of the existing wife has been considered immaterial which violates the right to life and personal liberty.

WHAT IS POLYGAMY?

Polygamy can be referred to as the practice or custom of having more than one spouse at the same time.  The custom of practising Polygamy has been outlawed in India, however, some people follow it. In legal terms, its practice in India varies from religion to religion based on their personal laws. Muslims are legitimately permitted to have wives up to four, and polygamy is also legal in a few parts of India where numerous tribal social orders and a few groups follow it. For a long time, married men whose personal law prohibits bigamy have been resorting to the unhealthy and immoral habit of converting to Islam in order to enter into a second bigamous marriage, believing that by doing so, they will be able to marry again without the dissolution of their first marriage.

POLYGAMOUS MARRIAGES UNDER MUSLIM LAW

Islamic law allows a man to marry up to four wives subject to a strict Quranic condition. It is a special provision in Islamic law, which has been provided to apply in limited circumstances. Unfortunately, this provision is widely misused in many Muslim societies. The social perception about the practice of polygamy is that a man may marry up to four wives unconditionally. However, the Quran has set a very strong condition, that a man who wants to marry more than one wife must be certain about doing ‘just behaviour’, to establish justice and fairness and should be in consortium with the existing wife/wives.  And in many cases, this is very hard to satisfy in practice. Provisions under the Muslim law related to polygamy have made it very easier for the man to marry anyone & anytime according to his wish, leaving behind the existing wife’s approval/ consent. As much as the consent of a woman to marry a man already having a wife is essential, the consent of the existing wife should be given more importance. Recently, a PIL has been filed in Delhi high court demanding Muslim men to obtain prior permission from the existing wife before entering into another marriage. The bigamy prohibition mentioned under the Indian Penal Code applies to Muslim women, but not to men because Muslim law considers a second bigamous marriage by a woman to be Void. However, restricting the choice of polygamy only to men makes it arbitrary in nature. The veracity of this belief, of course, needs scrutiny.

JUDICIAL PRONOUNCEMENTS

The Supreme Court of India, In the case of Khatoon v Yaamin[3], has held that the provision of Section 125 of the Code of Criminal Procedure[4], 1973 allows a wife to get separate maintenance due to her husband’s cruelty, applies to Muslim women whose husbands enter into a second bigamous marriage.

The Gujarat High Court in the case, Jinnat Fatma Vajirabhai Ami v. Nishat Alimadbhai Polra[5], said that “Polygamy is seen as an institution to be tolerated, but not to be encouraged under the Muslim law in India and grants the husband no fundamental right to compel his wife to share her consortium with another woman under any circumstances”

 In Begum Subanu v Abdul Gafoor[6], the Supreme Court has severely denounced bigamy, stating that a second wife is essentially a concubine.

In a significant decision, the Karnataka High Court has held having a wife (from a second marriage) and begetting a child from the second marriage is not grounds for a Muslim husband to justify the denial of maintenance ordered to be paid to his ex-wife/the first wife.[7]

LIMITATIONS ON POLYGAMY

It is worth mentioning that the Holy Quran itself established a framework for limiting the right to marry more than one wife. Because the Quran includes a condition for polygamy and has specifically stated that polygamy is not permitted if the fear of non-fulfilment of the Quranic condition exists. It is important to note that the Quran forbade polygamy simply because a man’s ability to ensure ‘just behaviour’ was called into question. As a result, the state can act to identify people who do not appear to be capable of upholding the Quranic norm. This indicates that a man who is unable to maintain his existing wife or provide for his family’s necessities should not be allowed to marry again.

THE RECENT PUBLIC INTEREST LITIGATION REGARDING THE ISSUE

The Delhi High Court issued notice on public interest litigation [Reshma v. Union of India][8]filed by a Muslim woman, seeking a declaration that Muslim men cannot perform another marriage, without the prior consent of their existing wife. In essence, the plea seeks restriction on the practice of Polygamy among Muslim men, stating that it is a regressive practice that is derogatory to women and is permitted under Shariat law only in “exceptional circumstances”, such as an illness of the first wife or her inability to bear children. The woman sought directions from the Union government to frame a law to regulate the practice of bigamy or polygamy contracted by a Muslim husband under Shariat with provisions of prior written consent of his wife/wives and prior proper arrangements of accommodation and maintenance of his wives.

Bigamy or polygamy has been provided under The Holy Quran only for extreme and exceptional circumstances but it is very pathetic that the Muslim husbands are taking it for granted and it has been propagated in the society that absolute discretion lies with the Muslim husband to contract bigamy or polygamy at any time without any reason and without advance notice to wife and without obtaining her without prior written consent and without making prior proper arrangements of accommodation, maintenance for wife. A Muslim wife is also entitled to constitutional protection and she cannot be deprived of her Right to Life in the name of applicability of personal laws. The practice of bigamy or polygamy contracted by Muslim husbands is contrary to Articles 14, 15, 21, and 25 of the constitution of India[9].

NEED FOR STATUTORY RESTRICTIONS

Polygamy should now be subject to stringent restrictions:

  • The wife should have the right to demand a condition in the marriage contract prohibiting her husband from marrying another woman;
  • The wife’s consent should be required before any new marriage is contracted;
  • The wife reserves the right to ask for divorce if she does not accept the polygamous situation;
  • The Family Judge should be responsible for ensuring that there is no presumption of inquiry and that the husband has the ability to guarantee equal treatment of wives.

CONCLUSION

Islamic sharia law does not grant an unconditional license to enter into a polygamous marriage. Different forms of restrictions on the power to contract a polygamous marriage have been imposed by modern countries. It has been clarified in the above text that in India, the existing wife does not have the authority to grant permission to her husband to enter into a polygamous marriage. Rather the husband is free to contract marriage, where consent of the existing wife to the polygamous marriage applied for does not hold any value. It is submitted that there is enough room open to imposing statutory restrictions on this power even within the framework of Islamic law.

Author(s) Name: Simran Gupta (Delhi University)

References:

[1] Indian Penal Code, 1860, s 494

[2] Indian Penal Code, 1860, s 495

[3] Khatoon v Yaamin, 1982 AIR 1982 SC 853

[4] Code of Criminal Procedure, 1973, s 125

[5] Anadi Tiwari, ‘Muslim law in India tolerates polygamy but does not encourage it: Gujarat High Court’,(bar and bench,  02 Jan, 2022) < https://www.barandbench.com/news/muslim-law-in-india-tolerates-polygamy-but-does-not-encourage-it-gujarat-high-court > accessed on 7 May 2022

[6] Begum Subanu v Abdul Gafoor 1987, AIR 1987 SC 1103

[7] Ezazur Rehman vs Saira Bhanu, (2015) W. P. No.3002 (GM-FC)

[8] Reshma v. Union of India(2022) W.P. (CRL) 639/2020

[9] Constitution of India, 1950, art 14,15,21 and 25

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