After triple talaq, petitions land at Supreme Court to end polygamy
The apex court, in 1997, had decided to not interfere with the practice of polygamy on grounds that such matters were policy decisions and did not warrant any interference by the courts.
In Short
- Polygamy is the practice of having more than one wife at the same time.
- Under the bigamy law, a man who remarries without divorcing his first wife can be sentenced to up to seven years in prison.
- Once a Muslim woman has been divorced, her husband is not permitted to take her back unless she undergoes nikahhalala.
Seven months after the Supreme Court quashed triple talaq, acting on appeals from four women victims; petitions are now landing at the Supreme Court to end polygamy.
Polygamy is the practice of having more than one wife at the same time. Under Islamic marital jurisprudence, Muslim men can have up to four wives at the same time.
Subaida (name changed on request) and Sameena Begum, two Delhi-based women - the former, a TV journalist, and the latter, a social worker - have become the first 'victims' of polygamy to knock on SC door demanding its ban.
Subaida who approached the SC through BJP leader and advocate Ashwini Upadhyay, said she was distraught after her husband remarried without legally ending their relationship. Sameena's plight is even worse as she had endured triple talaq twice in her life.
A postgraduate in Mass Communication, 37-year-old Subaida had married on June 5, 2008 and is a mother of two. "She had a deeply disturbed married life that included repeated dowry demands, various forms of torture and harassment at the hands of her husband as well as her in-laws," says the plea.
Ultimately, on January 26, her husband married another woman without informing her or taking a legal divorce. She approached the police and requested that a complaint be lodged against her husband for bigamy under section 494 of the Indian Penal Code.
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Under the bigamy law, a man who remarries without divorcing his first wife can be sentenced to up to seven years in prison. The guilty is also liable to a fine.
However, the police refused to file a complaint, saying under the Muslim Personal Law, a husband can have up to four wives.
"Therefore, by virtue of the Muslim Personal Law, section 494 is rendered inapplicable to Muslims, and no Muslim wife has the avenue of filing a complaint against her husband for the offence of bigamy," says the petition.
The SC, in 1997, had decided to not interfere with the practice of polygamy on grounds that such matters were policy decisions and did not warrant any interference by the courts.
"This stand amounts to an abdication of responsibility vested on courts under the Constitution. Questions involving violations of fundamental rights are not merely questions of policy to be sent back to the Parliament. They are concrete questions, the duty to answer which has been placed upon the Supreme Court," says the petition.
"The questions involving discrimination against marginalised groups cannot be left unanswered by constitutional courts of this country. The Parliament may have the power to legislate on such issues, as also a constitutional responsibility to do so, but if it abdicates the said responsibility by folding its hands, the Court must not merely follow suit," it adds.
Forty-year-old Sameena, in her petition filed through advocate Archana Pathak Dave says she got married in 1999 and had two children. She was regularly abused, and tortured for dowry.
Her husband left her after pronouncing triple talaq when she filed a dowry harassment case against him. She remarried again only to find out that her new husband was already married.
The fact however, was concealed from her at the time of marriage. Misfortune struck Sameena again, when she got pregnant for the third time. Soon after the birth of her son, she was given triple talaq by her second husband over phone.
"Sameena has approached the Supreme Court being a victim of polygamy herself and also moved by the plight of thousands of Muslim women across the country suffering due to the draconian practices of 'polygamy' and 'nikah-halala' that are rampant in the Muslim society," says advocate Dave.
"A complete ban on polygamy and nikah-halala has long been the need of the hour as it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights," adds Dave.
Subaida's advocate Upadhyay himself has filed a petition challenging both polygamy as well as nikah-halala. In his petition, Upadhyay has stated that section 2 of the Muslim Personal Law which permits these practices be declared unconstitutional and violative of the Constitution.
Once a Muslim woman has been divorced, her husband is not permitted to take her back unless she undergoes nikahhalala, which involves her marrying another man, who subsequently divorces her so that her previous husband can re-marry her.
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