Polygamy as a crime: Explained.

Introduction:

Art. 14 guarantees equality before the law within the territory of India. Equality before the law is a dynamic concept having many facets. One facet is that there shall be no privileged person or class and that none shall be above law. Another facet is the obligation upon the State to bring about an equal society as equality can be predicated meaningfully only in equal society. It permits classification but prohibits class legislation. So, a reasonable classification is not only permitted but is necessary if society is to progress. The classification, however, must not be arbitrary, artificial or evasive but must be based on substantial distinction bearing reasonable relation to the object sought to be achieved.

Polygamy as a part of Islam:

‘Talaq-e-biddat’ and polygamy are not essential practices of Islam religion. Art. 25 protects those practices of a religion without which the fundamental character of the religion will change. What is meant by 'an essential part or practice of a religion' is now the matter for elucidation. In the present case, polygamy and ‘talaq-e-biddat’ are essential practices of Islam. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practices mean those practices that are fundamental to follow a religious belief. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice, if the nature changes then it can be treated as an essential part of the religion.

Though the personal law of Muslims permitted having as many as four wives it could not be said that having more than one wife is a part of religion. Neither is it made obligatory by religion nor is it a matter of freedom of conscience. Any law in favor of monogamy does not interfere with the right to profess, practice and propagate religion and does not involve any violation of Art. 25 of the Constitution. The other essential practices of the religion can survive in isolation of this practice.

Is ‘Talaq-e-biddat’ an essential practice of Islam? ‘Talaq-e-biddat’ cannot be held as an essential practice of the religion and neither can it claim protection under Art. 25 of the Constitution. ‘Talaq-e-biddat’ has been held as an irregular form of ‘talaq’ by the religion itself, thereby ruling out the possibility of it being an essential part of the religion. ‘Talaq-e-biddat’ which is followed by the Hanafi school of the Sunni Muslim is considered to be the most sinful form of divorce. It is not recommended or even approved by many schools of Islamic law. It causes extreme misery to women. In Muslim law, there is a prescribed procedure for a divorce, although it is considered to be one of the most disliked things by God. There are some necessary conditions for a divorce to be a valid one. The conditions are; a divorce must be opted for only in the conditions where the woman is of bad character or is unhappy with the marriage. Absence of such reasons for giving a divorce cannot be justified in the eyes of law and it only draws the anger of God.

It is a popular fallacy that Muslim men enjoy or can enjoy arbitrary power while giving a divorce. An arbitrary or absolute power to grant a divorce does not accord with Islamic injunctions. The fact that ‘talaq-e-biddat’ is instant and irrevocable means that this practice of giving time for reconciliation and arbitration cannot be followed and hence, it cannot be the prescribed or normal form of ‘talaq’ and hence cannot be held as an essential part of Islam. Essential part of a religion are those practices which form a core practice of the religion and ‘talaq-e-biddat’ is clearly not a fundamental practice as it is only a permissible form of ‘talaq’ and the very Hanafi school that prescribes it terms it as sinful. The fundamental nature of the Islamic religion as seen through the Sunni Muslim’s eyes will not change without this practice. Hence under such circumstances when a religion itself places an act as undesirable though permissible and does not mandate the act then such an act cannot claim any protection under the Constitution and all right is given to the legislature to make amendments to that act for the benefits or welfare of society. merely because a practice has continued for long that by itself cannot make it valid if it has been expressly declared to be impermissible. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of a religion simply because it is permitted.

Conclusion:

It is to be understood that Muslim Law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged, and has not conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances. Muslim Personal Law does not permit a Muslim to treat one wife cruelly, drive her out of the Matrimonial home and then get married for the second time.