Three is a crowd

SC decision on polygamy significantly advances Muslim personal law reform.

Written by Faizan Mustafa | Published:March 17, 2015 12:00 am
Indian Muslims, Hindu marriages, Muslim marriages, Muslim personal law Clandestine bigamy among Hindus has a worse effect than open polygamy among Muslims.

In a historic decision last month, the Supreme Court denied a Muslim man the right to have more than one wife and upheld his termination from employment for committing bigamy. The court observed that polygamy was not integral to Islam and the practice was not mandated by religion simply because it was permitted. Similarly, in 2005, the SC had boldly acknowledged that, despite codification and the introduction of monogamy, too many Hindu marriages, like Muslim marriages, continue to be bigamous. This latest SC decision is in line with the reform of Muslim personal law that it initiated three decades ago in the Shah Bano case.

In a catena of cases, the SC has held that the freedom of religion protects only those practices that constitute an “essential and integral part of religion”. Therefore, Muslim personal law can claim the protection of Article 25 only if it is established that marriage, inheritance and the other areas it covers are “essential and integral parts” of Islam. The bench was of the view that a Muslim who wants to take more than one wife is engaged in neither professing and practising nor promoting and propagating his religion. Thus the SC rightly upheld service rules that mandated that an employee can have only one wife. There is substance in the argument that though the basic source of Muslim law is the Quran and the traditions of the Prophet, the relations it regulates are not religious. They are, on the contrary, social relations well within the province of the state. Therefore, Muslim polygamy has no religious motivation.

Whether the amendment or abrogation of Muslim personal law violates the fundamental right to conserve Muslim culture depends on whether the cultural identity of Muslims rests solely on their personal law. One view is that neither polygamy nor unilateral divorce can be fully identified with Muslim culture as most Indian Muslims are monogamists and have not exercised their right to divorce. Moreover, Indian Muslim law on these subjects does not reflect the moral mores of the divine verses. The Quran permits polygamy subject to the impossible condition that the husband is able to deal “justly with his wives”. But the Indian law ignores this precondition. Considered in the context of the global history of polygamy, the precondition is more noteworthy than the permission.

The other view is that Muslim personal law is indeed part of Muslim culture.The law as culture is not a new idea; in fact, the law is both a producer and an object of culture. But prior to Islam, unrestricted polygamy was the norm. Islam limited it to four wives and specifically urged Muslims to practice monogamy.

It is illegal for non-Muslims in India to have more than one wife. In spite of this, many Hindus have multiple wives. Official reports brought out in 1974, almost two decades after the prohibition of Hindu bigamy, highlighted the shocking fact that polygamy among Hindus was higher than among Muslims (Adivasis: 15 per cent, Hindus: 5.8 per cent, Jains: 6.7 per cent, Buddhists: 7.9 per cent, Muslims: 5.6 per cent). Figures for subsequent decades are not available. The difference may appear insignificant but in real terms, it is huge — as many as one crore Hindu men had more than one wife, as opposed to just 12 lakh Muslims. In fact, according to the 2011 Census, 66 lakh women are still in bigamous marriages.

Several Muslim countries, including Egypt and Iran, require a man to get not only the consent of his first wife but also the approval of a court prior to marrying another woman. The Moroccan code has a provision for the court to deny permission for polygamy if injustice between “co-wives” is feared. There is a similar provision in force in Jordan. And Tunisia, in fact, had prohibited polygamy way back in 1957.

If a Hindu man deserts his lawfully wedded wife to live with another woman, the only remedy available to the aggrieved woman is divorce. However, most abandoned women may not view divorce as a viable option because of the sacramental nature of Hindu marriage and social pressures. Clandestine bigamy among Hindus has a worse effect than open polygamy among Muslims. Muslim men who have more than one wife, on the other hand, are legally bound to provide each not only residence but also proper maintenance. Thus, a Muslim woman is better off than the “second Hindu wife”, who has no legal status or rights under the law. The latter cannot even claim maintenance from her husband. In fact, in D. Velusamy (Supreme Court, 2010), the second Hindu wife was denied maintenance and held to be a “mistress”. This matter, too, needs urgent attention and intervention.

The writer is vice chancellor, NALSAR, Hyderabad.

express@expressindia.com

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  1. D
    Dr. Aayush
    Mar 17, 2015 at 6:28 pm
    reports quoting 71.. that's a joke.
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    1. M
      Mv V
      Mar 17, 2015 at 11:56 pm
      It is interesting to see the myopic vision of the author and many of the commenters. Polygamy is a regressive practice that makes women second cl citizens and destroys the lives of children. India cannot consider itself a progressive democracy without destroying this vile practice. It is a shame that a top educator defends this practice in the name of religion. The fact is in a democracy we cannot cannot retain a regressive practice in the name of an archaic religious practice for one group of people because it contaminates society. The fact is many Hindus conveniently convert to Islam for the purpose of marrying more wives. What is even more degenerate is the fact that women marry previously married men by conversion. Hema Malini and Dharmendra are examples. When a prominent woman in society who is independently wealthy and educated does this, it puts women's rights into the dark ages. Men and women should stand up against this and other regressive practices. Nice to see that the law is at least taking a stand.
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        abhishek rawat
        Mar 17, 2015 at 9:30 am
        I have a serious issue with this article. Why indeed does the writer try to make this a case of Hindus vs Muslims, sucbing to the same vices that a lot of Hindu extremists these days do, despite his apparent education? Is this an article on law, or plain retribution? Also, since we are at it, let it be clear that although the statistics quoted by the author may well be true, the fundamental difference is that polygamy is allowed by the holy text of the Quran(although it is rightly denied legal sanction in all progressive societies with even the slightest care for gender equality), while no such provision is provided in the Gita. If the Hindus indeed do profess Polygamy more than Muslims in India, it is laxity on part of law and order, that is to be dealt firmly with by the state. The author irresponsibly pits one religion against the other, adding further fuel to the simmering communal fire in the country. Disgraceful.
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          Arvind
          Mar 18, 2015 at 2:05 am
          If a Hindu man has a "second wife" which is not permissible under the law - there is no second wife - its an illicit relationship. The lawfully wedded wife can seek divorce with punitive damages for adultery. Therefore a mans illicit relationships cannot be considered equivalent to the second or third wife of a muslim. The prof is off his rocker or just a bad and biased prof
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            Anil Maheshwari
            Mar 18, 2015 at 9:16 am
            Polygamy/ bigamy has to do nothing with religion. The practice of having more than one wife is the byproduct of affluence. Among the persons with whom I am in friendly relations, about half are Muslims but I have yet to find anyone having the second wife while among the Hindu friends, I am aware of at least two persons having two wives.
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            1. D
              Devji
              Mar 17, 2015 at 10:18 am
              o Gita is not for "Hindus" but only for the Vaishnavaites. Do not confuse others. Polygamy has to be coned as it denies right of women. Both "Hindus" and Muslims prictise this. Can a woman have many husbands... as in epic Mahabharat ?
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              1. H
                Harsh
                Mar 17, 2015 at 5:58 pm
                It’s a case of legal conversion that goes out of word, sprit and practice of the prescribed law under which a case was filed. The conversion has to be left to individual and not to the court. Polygamy cannot be considered as exploitation or crime as it falls under natural behavior or necessity that varies from individual to individual and it has also social and economical implications. Unless and until polygamy not violating any body’s natural rights, it cannot be termed as unnatural or illegal.
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                1. A
                  A. Haque
                  Mar 18, 2015 at 11:29 am
                  i do agree that Muslim personal law is a part of its culture not a modern thinking... the most important aspect has been highlighted that clandestine polygamy in Hindus is more dangerous as the second wife is just a mistress... so it needs to get more heeds than this in Muslims...
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                  1. I
                    Ishan Ishan
                    Mar 17, 2015 at 10:06 pm
                    The Gita preaches Vedic monotheism
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                    1. N
                      Narayan
                      Mar 17, 2015 at 8:40 am
                      Vice chancellor's opinion became an article to read on national news paper and waste all our time. I ume this chancellor is paid by the govt. This ic thinker is thinking from wrong places. There is no comparison of Muslim practices governed by mullas and sense less texts written by morons to any other religion in the world. Look out for such characters who can continue and mislead mes.
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                      1. N
                        Nitya
                        Mar 17, 2015 at 6:59 pm
                        what utter . having a second wife, legal or illegal somehow makes the women have a less standard than men. would this author allow a woman to have two husbands? what sort of example is he trying to set by saying Hindus have bigamous relationships? can he show some evidence for it? and just cos Hindu women are not divorcing, for the sake of social status, doesn't mean its right either. Men are not that special that they need two wives, legal or illegal. Many men have only one wife, so deal with it. Polygamy should be banned.
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                        1. R
                          Raja
                          Mar 17, 2015 at 7:03 am
                          The author is governed by an instinct to find s in the practices prevalent in the Hindu society. In the process, he makes several statements that are erroneous. Whereas he is right to the extent that most Muslim men in India practice monogamy, he is wrong when he claims that they do not exercise their “mandated” right to divorce. In fact, all married women in the Muslim society live under a constant fear in that the sword of talaq hangs over their heads. As far as D. Velusamyvs. D. Patchaiammal case (Supreme Court, 2010) case is concerned, the author willfully trwists the fact to suit his prejudiced opinion. The truth of the matter was that D. Velusamy was already married, hence D. Patchaiammal could not rightfully claim to be his legally wedded wife.
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                          1. P
                            Prashant
                            Mar 17, 2015 at 4:32 pm
                            Heard a Sane voice after very long time
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                            1. P
                              Prashant Iyengar
                              Dec 25, 2015 at 10:26 am
                              Excellent, well informed article by Prof. Mustafa. India definitely needs more VCs of this caliber manning its insutions. Anyone who has studied or practices family law in India knows that the legal position of a Hindu woman in a bigamous marriage is appalling. Contrastingly Muslim women in bigamous marriages have rights to spousal maintenance, inheritance and a host of welfare benefits including insurance etc. The point of the comparison, misinterpreted by many of the comments below, is not to exalt Islam over Hinduism but to call for more nuance in deliberating about polygamy in India. The demand for the ban on Muslim polygamy by the Hindu right through the enactment of a uniform civil code is in fact a plan to reduce Muslim women to the deplorable situation of many Hindu women.
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                              1. S
                                SP
                                Mar 18, 2015 at 1:01 am
                                If this is the thinking process of a VC - so biased, any statement made without any basis, God save the country.How can he make a statement "Clandestine bigamy among Hindus has a worse effect than open polygamy among Muslims."? On what research or survey? Anyway, India must have one code of social conduct , one set of laws for all citizens. We had enough of this Hindu Muslim Christian talk and waste of time, resources. If we have to remove poverty, if we have to rise as a nation , we must not only ignore but despise such Hindu, Muslim Christian talks and articles. One may wonder on the mindset being inculcated in his university.
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                                1. R
                                  Ram
                                  Mar 17, 2015 at 6:16 am
                                  Faizan Mustafa Mian. Who needs even one wife today? We all can manage without one marriage, as we can live in live-in relationship. You should have written the article in 1915.
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                                  1. R
                                    Ramesh Grover
                                    Mar 17, 2015 at 10:23 am
                                    Unlike Islam and Christianity, Hinduism is not a monolithic religion. In it, there are many substratas which are rooted in tribalism. In it, social crevolution and not law is needed to clean up that limited or limitation mess. Islam however is governed by a clear Quranic law. To justify a wrong, if that is the essence of this write, to mirror its reality is to obscure the reality. However, statistical information is a gain. I hope that all the so-called god men are reading it to lead their flocks the correct way. May be, in the area of social reforms, RSS can lead and do much not only here but also in many other areas.
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                                    1. R
                                      RJ
                                      Mar 17, 2015 at 10:59 pm
                                      What a half-baked pot of crock! If this is the quality of "vice chancellors" in India, the country is doomed beyond redemption. This wise guy's article can be summarized as follows: "Hindu mistresses are worse off than a Muslim second wife." So what, is this supposed to justify Muslim polygamy? And here is the ludicrous part - he is basing his argument on data from over 40 years ago!! Who the fruck made this guy the VC?
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                                      1. S
                                        saumya
                                        Mar 17, 2015 at 4:51 am
                                        Simply wow. Now the "esteemed" writer wants us to believe polygamy is better for women than monogamy. Let me guess - this guy is a typical bearded moron with no knowledge except how to endlessly repeat some age-old material.
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                                        1. Y
                                          Yogesh Shidhaye
                                          Mar 17, 2015 at 4:45 pm
                                          Good article - hope this encourages muslims to improve their civil code and bring it up to the era we are living in!
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                                            TANWIR
                                            Mar 17, 2015 at 5:19 pm
                                            A balanced article. However, as the writer has highlighted there is a dispute concerning the significance of personal law as an integral part of the culture of a community? Jurists may decide it otherwise, but most of us distinguish a culture by the way marriage, etc are organised by a particular community. As far as the polygamous marriage is concerned, it is certainly better than live-in-partnership or having illegal mistress with no civil rights. However, in most cases of normal marriages, monogamous marriage is preferable.
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