ABSTRACT

Polygamy has been a prominent feature since ancient times practiced among different
communities. It is deeply rooted in lifestyles of our ancestors. Polygamy is the practice of
having more than one wife at a time. The scenario now has changed and not all communities
practice polygamy but it is restricted to Islam which allows marrying at most four women.
Although Islam is one of the fastest growing religion, yet it is the most misunderstood faith in
the world because many claims that it is unjust to women when it permits polygamy. The
permission of polygamy is also one of the major reasons behind conversion to Islam which is
very unjust for a religion. Polygamy was allowed earlier because of some valid reasons, but
now it is being blindly practiced. It instead promotes inequality among religions as no other
religion allows polygamy except Islam. Polygamy has now become problem for women as
they are being exploited. The permission of polygamy has become a highly contentious issue
challenging the Muslims. The non-Muslims question the validity of polygamy whereas others
accuse Islam of injustice as it allows polygamy. This paper argues that women in
polygamous marriage are more disadvantaged than their counterparts in monogamous
relationship and also questions whether polygamy should be prevalent in present times.

Keywords: Polygamy, Muslim Law, Religion, Islam.

POLYGAMY: AN OVERVIEW

Equality is now a universally accepted principle among human beings. The

constitution of most of the nations of the world also grant the right to equality. Our
constitution of India also aims to secure social, economic and political justice to all the
people. It guarantees equality before the law and equal protection of law as one of the
fundamental rights. Also, Article I of the universal declaration of human rights 1948, states
that “all human beings are born free and equal in dignity and rights”. 1

Despite of having all such declarations and constitutional guarantees women have not
acquired complete equality with men. there are still such laws and customs prevalent which
do not give equal rights to women. Prime among these laws are personal laws which
perpetuates male domination. One of the most prominent inequality prevalent is the
institution of polygamous marriage. Although this problem is not concerned with Hindu,

1
UN General Assembly. (1948). "Universal declaration of human rights" (217 [III] A). Paris. Retrieved from
http://www.un.org/en/universal-declaration-human-rights/.
Christians, Parsis and Jews, but they get effected by the Muslim personal law of India where
this problem continues to exist.

Polygamy understood in loose sense implies a man cohabiting with more than one
woman. Polygamy was allowed in earlier times because of certain reasons. It may be the
decrease in number of men. in patriarchal society women were treated no better than a
chattel. Gradually, however, polygamy was limited, restricted or abolished through legal
sanctions. But so far Muslims are concerned, limited polygamy, particularly in India is still in
vogue.

Although Islam is one of the fastest growing religion, yet it is the most misunderstood
faith in the world because many claims that it is unjust to women when it permits polygamy.
The permission of polygamy is also one of the major reasons behind conversion to Islam
which is very unjust for a religion. Polygamy was allowed earlier because of some valid
reasons, but now it is being blindly practiced. It instead promotes inequality among religions
as no other religion allows polygamy except Islam. Polygamy has now become problem for
women as they are being exploited. The permission of polygamy has become a highly
contentious issue challenging the Muslims.

The problem with polygamy needs to be addressed as it leads to inequality among

religions as well as it is biased against women. The practice of polygamy should now be
abolished as there is no point allowing polygamy.

STATUS OF MUSLIM WOMEN IN INDIA.

Muslims in India have maintained a character of their own, but they have always been
distinct from Muslims of any other Islamic nation. This is because, as a community they are a
product of numerous disparate groups from all over the Muslim world. All this has a certain
amount of relevance on the present status of Muslim Women in India.

Woman had no recognized place or status in this agnatic Arab society. Besides,
marriage was contracted on payment of a bride-price; a wife was thus bought and therefore
looked upon as a kind of chattel. A wife could be lent to a guest as a mark of hospitality, for
which the Arab was well known. She was handed over to a friend for sexual intimacy when a
man went on a journey, or was given over to a stranger when better seed was desired. These
modes of behaviour towards women reflect not only the Arab's conception of woman as his
property but also his attitude toward sex.2

Mahr is no longer regarded as the bride price as it was in the old Arabic law but as a
gift to the bride. It becomes now the property of bride not of her father or guardian. Mahr is
either a sum of money or other form of property to which the wife becomes entitled by
marriage. It is not a consideration proceeding from the husband for the contract of marriage,
but it is an obligation imposed by the law on the husband as a mark of respect for the wife as
is evident from the fact than non-specification of dowry at the time of marriage does not
affect the validity of marriage.3

If woman is given in marriage by her guardian she is now entitled to a dissolution of

the marriage, if it took place before she attained the age of fifteen and she repudiated it,
provided that marriage was not consummated before she attained the age of eighteen.4

It does not however contemplate equality between man and woman. In equality
between man and woman faces us at every step. In India, though constitutional aim is to
provide justice, social, economic, political, to all citizens, but Muslim women are lagging
behind. Still unilateral divorce is exercised by Muslim husband, law relating to polygamy is
not reformed where changes are introduced in this respect in other countries. Though need is
greatly felt for change in the Muslim law to raise the status of Muslim women, Bombay High
Court in 1952 (while upholding the validity of Bombay Prevention of Hindu Bigamous
Marriage Act,1946) which banned bigamy among Hindus, and was challenged on the ground
of discrimination between Hindus and Mohamedans, said that, "the Hindu community was
more ripe for the reforms in question. In 1955 bigamy was prohibited among Hindus in India.
But the question is, Has the Muslim Community not yet ripe for the reform in question.
While all over the world reforms are made?5

Muslim women legal rights in respect of marriage and divorce are not only inferior to
those of men but are completely out of harmony with commands of modern society.

2
Kapadia; Marriage and family Law in India, P.38 (Ed.1958).
3
The dissolution of Muslim Marriage Act,1939, S.2(vii).
4
Abdur Rahim; Muhammadan Jurisprudence,334.
5
State of Bombay V. Narasu Appa Mali,1952, Bom. 84 at 95, para 30.
 POLYGAMY AMONGST MUSLIMS; ORIGIN AND DEVELOPMENT
(WITH REFERENCE TO INDIA).

This essential features of the Muslim law of marriage go back to the customary law of
the Arabs. Early life in Arabia was considerably influenced by the peculiar geographical and
climatic conditions. The variations in the climate and the geographical conditions led to the
formation of two different kinds of inhabitants. Some of them were more or less the nomadic
kind and the others were settled folk.6

The necessity of the struggle for existence made them offer unconditional loyalty to
their own class men.7

The Government of the Pre-Islamic Beduins was based on qabila (Tribe). They were
bound by the body of unwritten rules which had evolved along with the historical growth of
the tribe itself as the manifestation of its spirit and character. Neither the tribal head nor any
representative assembly has legislative power to interfere with this system. Modification of
the law which naturally occurred with the passage of time, may have been initiated by
individuals but their real source lay in the will of the whole community, for they could not
form part of the tribal law unless and until they were generally accepted as such.8

In the absence of any legislative authority there did not exist any official organisation
for the administration of the law. Tribal pride usually demanded that inter-tribal disputes be
settled by force of arms, while within the tribe recourse would usually be had to arbitration.
Under this system, the individual lacked legal protection outside his tribe. For the protection
of tribe, presence of many sons was highly desired. This was ensured by the fertility of their
marriage and by polygamy which, in itself provided the family with abundant female labour.9

Among the educated sections of the population, there is the feeling that polygamy is
an evil practice and many of the Indian Muslims now prefer monogamy.10

Among Hindus the various law has been passed which directly or indirectly affect
women. The main piece of legislation which changed the marital status of Hindu women is

6
B.R.Verma, Mohammedan Law, p.2. (1978).
7
Ibid.
8
N.J. Coulson, History of Islamic Law, p. 9.
9
Ibid.
10
J.N.D.Anderson; Islamic Law In Modern India, (Edited by Tahir Mahmood) p.34.
the Hindu Marriage Act, 1955, which prohibits Hindus from contracting bigamous marriage
and gives to the wife the right to obtain divorce in certain circumstances.11

But the condition of the Muslim women is however deplorable. There is hardly any
legislation which improves the legal status of Muslim women.in family life. Muslim husband
can still easily get divorce but not the wife. male Muslim may still have as many as four
wives at a time but Muslim women cannot have more than one husband. Worst still, under
the Hanafi law if a Muslim takes a fifth wife, the marriage is not void, but merely "irregular,
which he can regularise at any time by divorcing any one of the earlier four wives". A Sunni
taking a fifth wife is not guilty of the offence of bigamy under sections 494,495 of Indian
Penal code.12 However, among the Shias the fifth marriage is void and therefore, a Shia
husband who takes a fifth wife can be prosecuted for bigamy. 13 This, in brief, is the present
position of polygamy amongst the Muslims in India.

EXAMINING THE VALIDITY OF POLYGAMY IN PRESENT SCENARIO

The concept of polygamy came into the picture in Seventh Century to consider the
issue of taking care of large number of widows and orphans who were left without husbands
and father after the battle of Uhud near Medina between early Muslims and the inhabitants of
Mecca in which Muslims suffered defeat and many Muslim men were killed. 14 The concept
of polygamy was allowed in this verse because of utmost concern for the welfare of women
and orphans who were left behind in the battle. It is pertinent to mention that by no means it
is a general licence to Muslims in present times to marry with more than one woman. Besides
it puts onus on them to treat the additional spouses justly, which is admittedly a difficult task.
The Holy Quaran at Surah AI Nissa 4:129 it is said that

“And it will not be within your power to treat your wives with equal fairness, however
much you may desire it…..”

It is illegal for a married Muslim female to marry a second time during subsistence of
first marriage and such second marriage is void. As marriage is a contract in Islam, the girl
can include a condition in marriage Contract i.e Nikahnama that boy shall not marry during

11
The Hindu Marriage act, 1955.
12
Indian Penal Code, 1860.
13
Shahulameedu v. Subaida 1970 MLJ (Cr.), 569.
14
Sameena Begum v. Union of India, (2018) 16 SCC 458.
the subsistence of that marriage. But this will make the second marriage as a breach of
Contract but still not a ground for making Polygamy void.15

It was pointed in case by petitioner that spite of guarantee of the Constitution; Muslim
women are subjected to discrimination. There is no safeguard against arbitrary divorce and
second marriage by her husband during the currency of the first marriage, resulting in denial
of dignity and security to her. It is pointed out that the matter needs consideration by this
court as the issue relates not merely to policy matter but to fundamental rights of women
under Articles 14, 15 and 21 of the Constitution and international conventions and
covenants.”16

Article 3 of the Universal Declaration of Human Rights provides that everyone has
the right to life, liberty and security of person while Article 7 provides that everyone is equal
before the law and is entitled without any discrimination to equal protection of the law. 17
Since the adoption of the Universal Declaration of Human Rights, universality and
indivisibility of human rights have been emphasized and it has been specifically recognized
that women’s human rights are part of universal human rights. In the year 2000, on the
grounds that it violates the dignity of women, the United Nations Human Rights Committee
considered polygamy a destruction of the internationally binding International Covenant on
Civil and Political Rights (to which India acceded on 10.04.1979) and recommended that it
be made illegal in all States.18 It is well recognized in international law that polygamy
critically undermines the dignity and worth of women.

Examining the circumstances and arguments laid down in various cases it is evident
that polygamy is against the rights of women and it undermines the dignity of women. It is a
discrimination against women which is violative of fundamental rights guaranteed under
constitution of India. So, polygamy is not a valid practice as it is violative of fundamental
rights as well as it discriminates against women.

15
Ibid.
16
Ashwini Kumar Upadhyay v. Union of India, (2018) 9 SCC 64.
17
UN General Assembly. (1948). "Universal declaration of human rights" (217 [III] A). Paris. Retrieved from
http://www.un.org/en/universal-declaration-human-rights/
18
Ashwini Kumar Upadhyay v. Union of India, (2018) 9 SCC 64.
 CONCLUSION

After analysing various judgements, arguments and historical background of

polygamy it is found out that the practice of polygamy is discriminatory in nature and it not
only violates the fundamental right of women but also undermines her dignity. The courts in
various cases have reiterated again and again that the practice of polygamy should not exist
as it discriminates against the women. It is pertinent to state that in the Javed case, 19 the Court
held that;

“polygamy is injurious to public morals and can be superseded by the State just as
practice of ‘Sati’.”

Solution to this problem is that we should step towards achieving uniform civil code
which is the dire need for removing discrimination. The time is now ripe that India should
adopt uniform civil code. The hon’ble supreme court in various cases has emphasized on the
need for uniform civil code. In ShahBano case, 20 this Hon’ble Court has observed thus: “It is
a matter of regret that Article 44 has remained dead letter. It provides that ‘the State shall
endeavour to secure for the citizens a uniform civil code throughout the territory of India’.
Common civil code will help the cause of national integration by removing desperate
loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by
making gratuitous concessions on this issue. It is for the state, which is charged with the duty
of securing a uniform civil code and it has legislative competence to do so”.

In John Vallamattom case,21 the then Hon’ble Chief Justice of India Justice V.N.
Khare, with whom the other two Judges, Justice Sinha and Justice Lakshman agreed,
observed thus: “A common civil code will help the cause of national integration by removing
all contradictions based on ideologies”. The Court also observed that “the power of the
Parliament to reform and rationalize the personal laws is unquestioned and the command of
Article 44 of the Constitution is yet to be realized”

Thus, the practice of polygamy should be abolished, which is possible through

adopting a uniform civil code.

19
Javed v. State of Haryana, (2003) 8 SCC 369.
20
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
21
John Vallamattom v. Union of India, AIR 2003 SC 2902.