The Allahabad High Court held that a Muslim man can lawfully have more than one marriage if the same is carried out in terms of Mohammedan law. However, provisions of bigamy will operate if the earlier marriage was void or was contracted according to some other personal law like the Special Marriage Act, Hindu Marriage Act, Christian Marriage Act, Parsi Marriage Act, or Foreign Marriage Act, with a subsequent conversion to Islam prior to re-marriage.
Furkan’s Plea Against Bigamy Charges
The ruling came during the hearing of a plea by Furkan, who was arrested on charges of bigamy and rape after his wife complained that he hid his first marriage while they got married. Furkan contended that Muslim law allows four marriages, an assertion at the core of his defence.
After due proceedings, the court held that charges of bigamy and rape were not invoked in his case, holding the marriage valid. But the court also observed that the issue calls for further judicial scrutiny.
The Bench noted that according to Section 7 of the Family Court Act, family courts have the authority to determine the validity of a Muslim marriage performed under personal law. This means that such conflicts are within the domain of family courts and not of criminal courts only.
Asserting that Article 25 of the Constitution guarantees religious freedom, the court clarified that this right is not absolute.
This court would also like to note that Article 25 of the Constitution of India grants religious freedom to profess, practice and propagate. but this right is subject to public order, morality and health and other provisions of Part-III of the Constitution. Thus, religious liberty under Article 25 is not absolute and can be regulated by the State,” the court added.
Contextualising Polygamy in Islamic Law
Justice Deshwal clarified that polygamy is allowed in the Quran during exceptional historical conditions, not a general right.
“There was once a historical situation when a vast number of women were left widowed and children were orphaned in uncivilized tribal battles in Arab. The Quran provided for conditional polygamy to save orphans and their mothers from exploitation,” he added.
Conditional Nature of Polygamy in the Quran
The judge further stated that the Quran imposes strict requirements for polygamy.
“It is evident that the Quran instructs men to first take care of the orphans and only when they believe they cannot do justice to the orphans’ interests. should they contemplate marrying their widowed mothers, provided that the new family would be treated justly on par with the current one,” the court noted.
Emphasizing the abuse of polygamy, the court then concluded by appealing to the legislature to make a Uniform Civil Code, asserting that such freedom has been utilized for selfish motives in numerous cases.
