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Journalism of Courage
Narasu Appa Mali had his wife’s permission to take a second wife. It was not uncommon in the 1940s for a man to take a second wife, especially when he did not have a son from his first marriage. What followed the second marriage of this modest man from Miraj, a small border town in south-western Maharashtra, was anything but common.
A few years before Mali remarried, the provincial government had passed the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. The Indian Penal Code, enacted in 1860, borrowing from English law dating back to 1603, had made bigamy an offence. However, this law was barely used since the offence was compoundable — a case could be initiated only on complaint by an aggrieved party and could also be withdrawn at their instance. Naturally, a woman would rarely go to court against her husband, especially when bigamy was a social norm. When the 1946 law was passed, the offence was made compoundable and carried serious consequences — a jail term up to seven years and a fine.
In 1954, Jayashri Raiji, a Member of Parliament from Bombay, had said in a speech that B R Ambedkar, the first law minister, had reportedly told the Parliament “that nearly 2,000 marriages were performed in contravention of the anti-bigamous Hindu Marriage Act in Bombay State in the first few months of the passing of that Act”, but “very few cases went to the court.”
On October 24, 1950, Mali and six others were convicted by magistrate R P Salve under the Act and sentenced to rigorous imprisonment of two months with a fine of Rs 75. However, just two months later, in January 1951, B D Nandkarni, the sessions judge in Sangli, heard Mali’s appeal and acquitted him. Then, the government moved the Bombay High Court, setting the stage to defend the law’s constitutional validity. This was no longer the coloniser’s attempt to interfere with local customs, but an independent India’s first attempt at social reform.
State of Bombay v Narasu Appa Mali was a crucial turning point in India’s constitutional history. It opened up an important question that the country, for over 75 years now, continues to debate: can religion be regulated by law?
On July 24, 1951, the Bombay High Court held that the law was constitutional. The Court refused two crucial arguments of the petitioners. First, that the institution of polygamy was a “necessity” for a Hindu man to “perpetuate his family by the birth of sons” and second, that the law discriminated on the grounds of religion since the law only applied to Hindus, while Muslim men were allowed to be polygamous.
Justice P B Gajendragadkar, one of the two judges who decided the case, said that “even from the strictly orthodox point of view, bigamy was never a matter of obligation; it was permissive and permissive under certain conditions”. For the necessity of having a son, the ruling pointed towards adoption, since adopted sons had the same rights under the Hindu law as biological sons.
For the second argument, then Chief Justice M C Chagla, in his autobiography, Roses in December, wrote that it had his “sympathies”.
“It was argued that it was discriminatory to place a restriction on the Hindu community alone, when the Muslim community could indulge in polygamy. All my sympathies were in favour of this argument. I always felt that the government had shown lack of courage in not passing a Monogamy Act which applied to all communities. With great reluctance, I had come to the conclusion that I could not strike down the law, as it was well-settled that a social reform measure need not apply to all sections and that reform could be brought about by stages. Government was therefore justified in introducing this social reform as a first step applicable only to the Hindu community,” Chagla wrote in his memoirs.
Justice Gajendragadkar said that the legislature may have thought that the Hindu community was “more ripe” for the reform. “Social reformers amongst the Hindus have agitated for this reform vehemently for many years past and the social conscience of the Hindus, according to the Legislature, may have been more in tune with the spirit of the proposed reform. Besides, amongst the Mahomedans (Muslims), divorce has always been permissible and marriage amongst them is a matter of contract. If the State Legislature acting on such considerations decided to enforce this reform in the first instance amongst the Hindus, it would be impossible in my opinion to hold that in confining the impugned Act to Hindus as defined by the Act it has violated the equality before law as guaranteed by Article 14,” he wrote.
The Court’s most significant finding, however, was on an issue that continues to be debated: can religious customs and practices be considered “law”? This is crucial since Article 13 of the Constitution states that “laws” that are violative of fundamental rights ought to be struck down by the court. The government had argued that polygamy as a social practice was unconstitutional and therefore, the 1946 law was valid.
Even as the Court upheld the validity of the 1946 Act, it did not agree with the government’s contention. The ruling held that personal law is immune from constitutional scrutiny, a finding that would be very consequential. This would essentially mean that personal laws, even when regressive, can be permissible. This 1951 judgment was never challenged in the Supreme Court.
“The ghost of Narasu Appa Mali”, as senior advocate Indira Jaising referred to in a 2018 article, could be summoned to save a discriminatory personal law practice. In 2017, the ruling was cited to defend the practice of triple talaq. However, without overruling the Bombay High Court verdict, the Supreme Court struck down the triple talaq practice, carving out a space for gender parity, even in personal law. Justice Rohinton Nariman, one of the five judges on the Bench, had, sidestepping the Narasu ruling, said that since the triple talaq practice was codified in the Shariat Act, it was no longer just a custom but a legislation.
Speaking to The Indian Express, Jaising said the ruling must be overruled on this point. “The urgency increases with every passing day. More and more reliance is placed on uncodified laws. How can they be beyond the reach of fundamental rights?” she says.
The Narasu ruling, even if not overruled, is significantly diluted. In 2018, another religious custom, barring the entry of menstruating women in the Sabarimala temple, was challenged as being discriminatory. Justice D Y Chandrachud, in the ruling, had said that the Narasu finding was based on “flawed premises”.
“The decision in Narasu, in restricting the definition of the term ‘laws in force’ detracts from the transformative vision of the Constitution. Carving out ‘custom or usage’ from constitutional scrutiny denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu is based on flawed premises. Custom or usage cannot be excluded from ‘laws in force’. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality,” the temple entry ruling stated.
“The Narasu Appa Mali judgment needed a re-reading, a reinterpretation, but that has not happened. I am not so sure in the current state of affairs whether anybody would like to touch it and open it up for debate because the whole debate has now become communal. In many cases, the courts have not applied Narasu Appa Mali, but found a way around it to speak of gender equity within personal laws, like the triple talaq judgment,” says Flavia Agnes, women’s rights lawyer and co-founder of Majlis, a legal centre for women.
With the Uniform Civil Code high on the BJP’s agenda, Uttarakhand, this year, became the first state to bring in a neutral civil code. When these are tested in courts, the “ghost of Narasu” will be summoned again, but it remains to be seen whether it will be exorcised.
As for Narasu himself, the Bombay High Court had reversed his acquittal. However, since he had “the consent and approval of his first wife”, the High Court did not think his jail term was justified. Paying a fine of Rs 100 in exchange for a month in prison, Narasu had perhaps moved on in life.
