Source: Times of India

Why in News?

The Chief Minister of Assam, Himanta Biswa Sarma has stated that the State Government would enact legislation to ban polygamy under Islamic Law.

Background

• Assam Government has constituted a four-member committee headed by retired Guwahati High Court Judge Rumi Phukan to examine the competence of the state legislature to enact such a law and submit a report within 60 days.
• The committee said that Marriage and Divorce are subjects of Concurrent List, the state enacted law would be enforceable in state only after receiving the Presidential assent.
• It was further stated that polygamy infringes Fundamental Rights guaranteed to Islamic women under Article 14,15,21 of the Constitution of India, 1950 (COI).
• Further observation of the committee was that polygamy is permitted but is it not a mandatory practice as it does not form part of essential religious practices of Islam hence law enacted in like nature would not infringe Article 25 of the COI but is protected by Muslim Personal (Shariat) Act 1937.
• Polygamy was abolished among Hindus, Buddhists and Sikhs after the enactment of the Hindu Marriage Act, 1955 (HMA).
• Polygamy is banned among Christians by the Christian Marriage Act, 1872 and among Parsis by the Parsi Marriage and Divorce Act, 1936, however, polygamy continues to be practiced by Muslims because of the protection by the Muslim Personal Laws (Shariat) Act 1937.
• The Committee remarked that the Supreme Court has time and again suggested the legislature to act on the Directive Principles of State Policy (DPSP) under Article 44 of COI emphasizing on the desirability of Uniform Civil Code (UCC).

Polygamy

• “Polygamy is the fact or custom of being married to more than one person at the same time. “
• Marriage under Islamic Law or Nikah, is not a sacrament (as in Hinduism), but a civil contract between a man and woman to live as husband and wife.
• Muslim Marriage is entered into by both the parties by their free will as in its formation it takes the form of contract as there is an offer (Ijab) and acceptance (Qubul) between the parties.

Shariat Law

• According to Section 494 of the Indian Penal Code, 1860 bigamy is a criminal offence whereas Section 2 of the Shariat Act allows the application of polygamy on Muslims.
• Muslims in India are subject to the terms of Muslim Personal Law Application Act (Shariat) of 1937, interpreted by the All-India Muslim Personal Law Board.
• Muslim women aren't permitted to practice polygamy which brings about discretionary and preposterous order exclusively dependent based on religion and sex.

Section 2 - Application of Personal law to Muslims - Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Constitution of India, 1950

• Article 14 is a synthesis of the two principles, equality before the law and equal protection of the laws.
  • Article 14 - Equality before law — The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Article 15(1) mentions that no discrimination shall be made by the state on the basis of gender and is mentioned as follows:
  • Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth — (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
• Article 25 protects religious faith and not a practice which may run counter to public order, health or morality.
  • Article 25 - Freedom of conscience and free profession, practice and propagation of religion -

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II. —In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

• Article 44 in the DPSP, of the Constitution, states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The UCC aims to establish a uniform legal framework for all citizens, regardless of their religion.
• Concurrent List - List-III (Seventh Schedule) is a list of 52 items in total. It includes the power to legislate laws by both the Union and State Government.

Case Laws in which Supreme Court Emphasized the Importance of UCC

• Mohd. Ahmad Khan v. Shah Bano Begum (1985)
  • The Supreme Court ruled in favour of a divorced Muslim woman in regard to her entitlement to maintenance under section 125 of the Criminal Procedure Code, 1973. Further, it recommended that a UCC be set up.
• Sarla Mudgal v. Union of India (1995)
  • The question was whether a Hindu husband married under the Hindu law, by embracing Islam, can he solemnize a second marriage? The Supreme Court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy.

Note:

• Recently, 22^nd Law Commission of India has chosen to seek the opinions and suggestions of the general public as well as recognised religious organizations regarding the UCC.
• Law Commission of India (2018): It stated that UCC is neither necessary nor desirable at this stage, as it would be counter-productive for the harmony of the nation.
• It also suggested that reforms in personal laws should be made by amendments and not by replacement.