The Muslim personal law system permits polygamy, but in case a woman needs to remarry she must divorce her first husband. The divorce must be under either Muslim Personal Law or in accordance with the provisions of the Muslim Marriages Act, 1939
Facts
The petitioner in this case was a couple. The petitioner 1 was a Muslim woman who had gotten married to the second petitioner. The issue was that the 1st petitioner had not obtained a legally valid divorce from her first husband. The couple claimed to be receiving death threats and also were threatened with eviction from the property. The plea was filed before the High Court seeking protection. The Muslim man and woman were married as the woman did not want to live with her first husband. The couple in question performed nikah in accordance with the provisions of Nikahnama. The relatives of the woman were against the marriage. The woman had filed a petition against her first marriage also.
Arguments
The petitioner 1 contended that her first marriage was forced and was not based on free will. She said that she wanted to live with her second husband who was her lover. The petitioners were questioned about their marital status. It was contended that since the petitioners were Muslims, they could enter into a second marriage. The petitioners also informed that court that the woman had filed a case against her earlier in-laws.
Decision of Punjab and Haryana High Court
The marriage was declared illegal by the Punjab and Haryana High Court. The Court based its decision on the Muslim Personal Law system and stated that
“a Muslim man may get married more than once without divorcing his earlier wife but the same does not apply to a Muslim lady”.
The single-judge bench composed of Justice Alka Sarin noted that
“There is also no averment that her first marriage stands dissolved and thus her first marriage subsists in the eyes of law.”
The Court also added that,
“In fact, the alleged marriage itself between petitioner No.1 and petitioner No.2 would be illegal inasmuch as this marriage has been contracted without the petitioner No.1 being legally divorced.”
The Court asked the individuals to seek help from the Superintendent of Police in case there is any threat to life and liberty.
Nahida & Anr. V. State of Haryana & Ors. [CRWP No.764 of 2021 (O&M)]
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