A plea has been filed before the Supreme Court seeking a declaration that the practice of Muslim Bigamy is unconstitutional, oppressive towards women and opposed to equality. It stated that the practice of bigamy cannot be allowed for one religious community alone while it is prohibited for persons from other religions.
The petition filed by five individuals through advocate Vishnu Shankar Jain has also prayed that Section 494 of Indian Penal Code (IPC) and Section 2 of Muslim Personal Law (Shariat) Application Act,1937 both of which enable Muslim Bigamy and men to take more than one wife be declared unconstitutional.
The plea further seeks a declaration that the system of Muslim Bigamy marriage is irrational, illogical, discriminatory and oppressive for women and ultra vires Articles 14 and 15(1) of the Constitution of India.
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Contentions in the Plea
The petitioners have argued that Section 494 discriminates “only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”
“The second marriage solemnized by a Hindu, Christian or Parsi during the life time of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if contacted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India,” the petition stated.
The petitioners pray that words ‘in any case in which such marriage is void by reasons of its taking place’ occurring in Section 494 of IPC be read down/strike down.
This part of Section 494 protects Muslim Bigamy marriage among Muslim men since their personal law gives sanction for such marriages and it is the Muslim personal law which governs Muslims in matters of marriage and divorce due to Section 2 of the Muslim Personal Law (Shariat) Application Act,1937
“From the aforesaid provision it is clear that the offence of bigamy is punishable only when the second marriage is void. It means that the validity of second marriage depends on the recognition of such marriage under personal law. The result is that a second marriage solemnized by a Hindu, Christian or Parsi during the life time of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if conducted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is perse in violation of Article 14 and 15(1) of the Constitution of India,” the petition contended.
The primary argument raised in the plea is that State cannot make criminal law in such a manner that creates discrimination against some by making the same act may be punishable for someone “enjoyable” for others.
Since, it is Section 2 of the Muslim Personal Law (Shariat) Application Act,1937 which makes Sharia law applicable to Muslim Bigamy marriages and divorce, that provision has also been challenged for violation of Article 14.
