Ever since the Supreme Court declared the practice of triple talaq as unconstitutional in the case of Shayara Bano, another demand raised by the women’s rights activists was to ban the practice of polygamy or the practice of keeping multiple wives at the same time which is allowed in Muslim law. Polygamy is banned for all religions through their personal laws. However, Muslim law is an aberration in this regard. The Muslims label this regressive practice under the purview of the right to practice their religion. However, this argument put forth by the Muslims is completely fallacious and doesn’t come under Article 25. Apart from this polygamy is also violative of various constitutional norms. Recently, A petition was also filed by a Muslim woman Sameena Begum regarding the abolition of polygamy in the Supreme Court.
THE NEED TO ABOLISH POLYGAMY
The practice of Polygamy in Muslims is directly in contravention of Article 14 of the Indian Constitution. Article 14 of the Indian Constitution allows class legislation only on two grounds. The first being that the classification should not be arbitrary. The second condition is that the classification must have a reasonable connection with the goal that is sought to be achieved. Polygamy does not fulfill any of this criterion. The exemption is granted only to Muslims and is in violation of Article 14 because there is no fair classification, it is rather arbitrary. There is no reason why Muslim men should be allowed to marry multiple times. Allowing a Muslim man to have a bigamous marriage, on the other hand, does not advance Muslim men; rather, it is regressive and arbitrary. This practice is also discriminatory based on sex and religion. Thus, the practice of polygamy is violative of Article 14 of the Indian Constitution.
Apart from this, the practice of polygamy is allowed only in Muslims which is clearly in contravention with Article 15 which prohibits discrimination based on religion. The Supreme Court in the case of State of Karnataka v. Appa Balu Ingale & Ors ruled that
“The Judges should adopt a purposive interpretation of the dynamic concepts under the Constitution and the act with its interpretive armory to articulate the felt necessities of the time. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law.”
Polygamy also violates Article 3 of the International Covenant on Civil and Political Rights, which guarantees equal rights for men and women, as well as a woman’s right to equality in marriage, and has serious financial consequences for her and her children.
Apart from that, since polygamy is not a necessary practice in Islam, it is not covered under Article 25 of the Indian Constitution. Polygamy was first practiced by Muslims around 625 AD, when many Muslim men were killed in large numbers in the Battle of Uhud, leaving many women widowed. Due to this, Mohammed allowed for the practice of polygamy however this was not a mandatory practice and was started with compassion towards widows. This was also revealed from the surah 4:3 of the Quran which says that
If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly with them), then (marry) only one.
So it is established that this is not an essential religious practice that should be persevered and thus, it is outside the purview of Article 25.
In the case of Maulana Mufti v. State of West Bengal, Calcutta High Court ruled that although Azan is an integral part of Isla, the use of microphones at ungodly hours is not. On the contrary, it is an infringement of the fundamental right to sleep and leisure.
The Supreme Court in the recent case of Shayara Bano & Ors. v. Union of India declared the practice of triple talaq as unconstitutional as it was discriminatory to women. Triple talaq was a practice where the husband could divorce her wife by uttering, the word “talaq” 3 times at the same time. The rationale behind the judgment was that it was discriminatory as well as it was not an essential religious practice that is integral to Islam. Thus, it was outside the purview of Article 25.
Apart from the contravention of the constitutional norms, this practice seriously affects women. Various researches have found that polygamy has a serious effect on the health of women. In the research conducted by Dr. Rana Raddawi, it was found that many women who were a part of polygamous marriages experienced depression, angry tantrums, or even illnesses. They also experienced feelings of neglect and jealousy. Apart from women, it also has a serious impact on children. In one of the research, it was found that children who were living in a polygamous family suffered from a variety of mental health issues.
Polygamy is a practice that shows the patriarchal nature of our society where men are allowed to have multiple wives. Therefore, it is proposed that the practice of polygamy, which is permitted under Muslim law, be abolished in recent times. It is clear that polygamy does not conform with India’s constitutional principles, and is highly oppressive, as well as a violation of Article 14 of the Indian Constitution, and that it is not an essential activity under Islam. In addition, polygamy is extremely harmful to women and children. Polygamous women have to deal with anxiety, neglect, and envy daily. They also struggle with a variety of mental health problems. Children in polygamous families suffer from a variety of academic, social, and mental health issues.