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Polygamy as the name suggests means a system of marriage whereby one person has more than one spouse. It can be of two types. One is polygyny where a man marries more than one woman, and the other is polyandry, where a woman marries more than one man. In Islam, limited polygyny is permitted and polyandry is completely prohibited. The research work1 analyzes the issue of Polygamy with reference to the bulkiest constitution in the world. Most of the debaters argue that the Indian polygamy law only prohibits polygamy among one religious group.2 Thus, current Indian law poses a constitutional paradox because permitting polygamy among Muslim men but prohibiting it among Hindus under the freedom of religion provisions violates the equal protection provisions of the Indian Constitution. The author takes a departure from this standpoint and argues that there are several reasons why Polygamy was not made punishable under the muslim personal law. The reasons are umpteen, i.e., historical reasons, political reasons, etc. This paper examines the relevant constitutional provisions that are said to pose a constitutional paradox often by permitting polygamy among Muslim men in India. And thereby highlight those provisions as to how they do not violate the rights of the Hindus. Specifically, this paper contends that we cannot say that the Hindus are being discriminated and there are several reasons behind the same. This paper then argues that legislation in India, prohibiting polygamy among Hindus yet allowing polygamy among Muslims, is not unconstitutional and it doesnt violate the provisions of Articles 13, 14 and 15 of the Indian Constitution.
* Writer is a IInd Year Student of B.A.(Hons.) LL.B.(Hons.) at National University of Study and Research in Law, Ranchi, India. Queries can be directed to surajsingh0410@gmail.com. 1 This paper is submitted to NUSRL, Ranchi, India as a Project Report. 2 See Hindu Marriage Act of 1955 , S. 17 (Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of the Indian Penal Code . . . shall apply accordingly.)
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RESEARCH HYPOTHESIS- There is a constitutional paradox when on one hand the Muslims are allowed to practice polygamy and on the other hand the Hindus are penalised for the same. At the end of the report it will be clear as to whether the hypothesis with which the research has started was actually correct or not.
RESEARCH METHODOLOGY- The methodology adopted f o r the purpose of this research is a doctrinal method involving the analysis of the Statutes, Case laws, existing Information accessed from various sources like Books, Websites, articles, journals, research papers, etc. and analysis of the data and then its interpretation.
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Menski, Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, Fourth Edn., 2011, p.377 4 Quoted in Menski, Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, Fourth Edn., 2011, p.378. 5 Id. 6 Id. at p.379
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Verma, B.R., Commentaries on Mohammedan Law, Law Publishers Pvt. Ltd.,Twelth Edn.,2011 p. 78; See also Fyzee, Asaf A.A., Outlines of Muhammadan Law, Oxford University Press, Fifth Edn., 2011. 8 Id. At p. 79
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To marry a second wife depends on the sweet-will of the person and since it is not a religious injunction, one cannot come to the conclusion that it is a religious practice. Marriage brings about a relation based on and arising from a permanent contract for intercourse and procreating of children, between a man and a woman, who are referred to as parties to the marriage and who after being married, become husband and wife.9 Unlike Hindu Marriage which is a sacrament, Muslim marriage is nothing but a civil contract.
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Menski, Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, Fourth Edn., 2011, p.389 11 Subba Rao, G.V., Family Law in India,S. Gogia & Co. , Tenth Edn, 2011, p. 178 12 http://lawcommissionofindia.nic.in/reports/report227.pdf (as accessed on 1.3.12)
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AIR 1970 SC 564. AIR 1973 SC 106: See also Maneka Gandhi v. Union of India AIR 1978 SC 597. 15 (1984) 3 SCC 316. 16 See Shukla, V.N., Constitution of India, Eastern Book Company, Eleventh Edn., 2008, p. 80. 17 Civil Appeal No.. 1125-1128 of 2011: Available at http://indiankanoon.org/doc/98280/ (as accessed on 1.3.12)
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Article 15(1) prohibits the State from discriminating against any citizen based only [on] religion, race, caste, sex, or place of birth. Researchers and scholars argue that allowing the Muslims to practice Polygamy and prosecuting the Hindus for the same classifies discrimination and hence, the legislation should be amended.18 Laws for the social reform social reform of Hindus only, e.g., prohibition of bigamy, have been held to be valid, since the classification was not based on religion only but also on the social advancement of the Hindus.19
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Supra F.N. 16. Basu, Durga Das, Shorter Constitution of India, Fourteenth Edn.2009, Vol.1, p. 188; quoted in State v. Narsu, AIR 1952 Bom 84; Srinivasa v. Saraswati, AIR 1952 Mad 193; Channamma v. Dayna, AIR 1953 Mys 136.
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and Muslim communities was selectively interpreted rather than systematically gauged, and interpreted in such a way as to accord with the politics that the government sought to pursue for political reasons. Muslim opinion was presumed to be unsupportive of any reform or codification without any attempt to verify this presumption. 2. Historical Reasons Another reason why allowing Polygamy under the Muslim law should not be considered as biasness because of a historical proposition. The Prophet Mohd. (571 AD-632 AD) the last messenger according to Quaran laid down the principle for his followers that a person may keep as many as four wives only and that too only in exceptional circumstances prevailing in those days. The Prophet had allowed the followers of Islam to keep four wives at one time because of the contemporary reasons. He permitted the men that every man would keep as many as four wives along with their children. So that no widow or child would die out hunger
20
Williams, Rina Verma, Post Colonial Politics and Personal Laws,Oxford University Press, 2006 p. 98
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starvation or illness. Through the system every widow and her children were taken care of. (i) The permission that flowed from the prophet was not permanent for all the times to come. But, it was only a temporary provision just to manage the cotemporary problems of war. Along with the provision of keeping for wives the prophet imposed mandatory conditions upon the persons who might keep more that 1 wife that if a person keeps more than one wife he must have an equal eye upon all the wives. That is the principle of equality which was to be observed and not to discriminate on any grounds whatsoever. (ii) It was not a general Rule of law. But, only an exception to streamline the society to deal with the problem of widows and orphans of the people who died in war. Though, now the Muslim leaders in India have misinterpreted the dictates of the prophet started receiving undue advantage.
3. Judicial pronouncements and the interpretation of the Constitution in the light of the Issue in hand The first was State of Bombay v. Narasu Appa Mali21, where the first constitutional challenge to the provisions of the Hindu Marriage Act, 1955 came from a Hindu male challenging the provision of monogamy. A petition was filed in the Bombay High Court challenging the monogamy imposed by the Bombay Hindu Marriage act, 1946. A Hindu Husband pleaded that the stipulation of monogamy violates his personal freedom and hinders the practice of religion. He also argued that this dectate is discriminatory against Hindu men, since Muslim men are permitted to contract polygamous marriages. Rejecting these contentions, the high court held that personal laws are not laws in force as per the stipulation of Article 13 of the Constitution and hence they are not void even when they come into conflict with the provision of equality under the Constitution, because Fundamental Rights cannot be applied to personal laws.
The subsequent case of Srinivasa Aiyar v. Sawaswati Ammal22, also advanced similar arguments. It was argued that prohibiting polygamy denied Hindu men
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AIR 1952 Bom 84 : See also Agnes, Flavia , Family Law : Family laws and Constitutional Claims, Vol.1, Oxford University Press, New Delhi, 2011, p.28. 22 AIR 1952 Mad 193; See also Agnes, Flavia , Family Law : Family laws and Constitutional Claims, Vol.1, Oxford University Press, New Delhi, 2011 p. 29.
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equality before the law and equal protection of law, and further, that it discriminated against Hindu men on the grounds of religion as it restricted the right to freely profess, practice, and propagate religion. The Madras High Court held that the Act does not offend Article 15 which stipulates non-discrimination on the basis of Sex.
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