This blog is inscribed by Rahil Setia
“A perfect marriage is just two imperfect people who refuse to give up on each other”
- Kate Stewart
I. INTRODUCTION
After independence, India chose the path of secularism and adopted a constitution which would treat each and every individual with equality. The constitution also provides for the fundamental right to practice one's own religion under Article 25. Within a decade of the enforcement of Indian constitution, the Parliament of India codified most of the aspects of Hindu Personal Law and did away with several unconstitutional practices, including practices such as bigamy. It is hereby pertinent to note that personal laws of the minority segment were largely left uncodified and therefore practices such as polygamy are prevalent amongst various sections of the society, even today.
II. MEANING AND THE FORMS
Polygamy is essentially the practice of having more than one spouse. It may be broadly categorised as Polygyny and Polyandry. Polygyny is the practice in which a man has more than one spouse and Polyandry is the practice in which a woman has more than one spouse. This basically connotes a practice which may be considered to be apparently in conflict with the normal expected standards of what a marriage should be like. In some societies polygamy in any form is considered to be a taboo, whereas, on the other hand, polygamy is considered to be a part of the custom in particular communities. The legitimacy of Polygamy in Islam is conferred by the Holy Verses of Quran.
III. DECIPHERING THE LEGALITY OF POLYGAMY IN ISLAM
As the concept of polygamy in Islam has its genesis in Quran, it automatically becomes imperative to analyze the particular verse which permits polygamy in Islam. The verse which permits polygamy is as follows:
“If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four ; but if you fear that you shall not be able to deal justly (with them), then (marry) only one ...” (Quran 4:3).
Concept of Polygamy as envisaged under Quranic
ü Polygamy in Islam is neither encouraged nor mandatory, it is merely permitted.
ü The practice of polygamy is not only concerned with the satisfaction of passion, rather it is more concerned with compassion towards orphans and widows.
ü The concept of polygamy is allowed in a very limited form and in a very restricted manner by the Quran. It is subject to various conditions and stipulations.
ü The Quran not only states that a person must deal with his wife in a just manner but it also applies a condition which states if a person is not able to treat his wives justly, he must only marry once.
Marriage in Islam is treated as a civil contract which is valid only when parties to the contract give their consent for it. Therefore, there's no way that a woman can be forced to marry a person who is already married. For some polygamy may simply be a better solution than a divorce. Women also have the option of approaching suitable judicial forums in case they encounter injustice or maltreatment at the hands of their husbands.
IV. CONSTITUTIONAL TEST OF THE CONCEPT OF POLYGAMY
Polygamy in Islam is considered to be an essential religious practice therefore, it has not been prohibited expressly till now either by law or otherwise, but it is pertinent to note that any practice if found to be apparently in conflict with the fundamental tenets of the constitution, should be struck down by the courts.
Let us now try and analyze the concept of polygamy in light of various legal principles:
Indian Constitution guarantees equality before the law and equal protection of the laws under article 14. It lays a positive obligation upon the State to bring equality based upon certain pragmatic considerations. However, the courts have time and again said that reasonable classification under Article 14 is permissible provided that it is for a legitimate object and is backed by a statutory law. Applying the test of reasonable classification to the peculiar case of polygamy in case of Muslims reveals that even though under Section 494 of the Indian Penal Code Bigamy has been labeled as a criminal offense; Section 2 of the Shariat Application Act allows for the application of polygamy on Muslims. However, it must also be noted that Muslim women are not allowed to undertake polygamy and therefore this results in a classification based on arbitrary and unreasonable grounds as the classification is apparently based on religion and gender which is frowned upon by the constitution.
Concept of Gender Justice
Article 15 of the constitution expressly prohibits discrimination against citizens on the grounds of religion, race, sex, etc. it may be considered that polygamy is an arbitrary and discriminatory practice and is violative of Article 14 and Article 15 of the constitution. India is a country which recognizes a diverse legal system encompassing different religious communities which are allowed to be governed by their own set of personal laws. The Supreme Court in the case of SR Bommai v. Union of India[1] held that preamble is a part of the basic structure the constitution which calls for establishing equality of status and of opportunity amongst the citizens. We can see that the personal laws which discriminate on the basis of gender are inherently contradictory to the idea of equality which permeates the constitution. The practice of polygamy may be regarded as something which is not consistent with the idea of constitutional morality.
Article 25 of the Indian Constitution protects religious practices that are considered to be essential to a particular religion. Essentiality is basically determined on the touchstone of whether or not the characteristic of the religion would change if that practice was or was not to exist. This has been a center of constant debate as to what is and what is not an essential practice of religion. Kerala high court in the case of Shahulameedu v. Subaida Beevi[2] observed that holy Quran restricted the number of wives to a maximum number of four subject to a condition that they all should be treated with equality, be it in material aspects or otherwise. The court also observed that since the observation of such conditions and limitations may be difficult. the general inclination of the recommendation was towards the practice of monogamy.
V. CONCLUSION
It is observed that the practice of polygamy tends to interfere with the peace of women and may take a mental toll on them, a section of women may feel that they are being denied the chance to feel equal and at par with their partners. The consequences of polygamy are multi-dimensional and are subject to a woman's mindset some may not feel anything at all and may consider it to be part of a custom while the others may be simply observing it under protest. It is truly difficult to analyze the true nature of the impact that polygamy might have on them.