LUCKNOW: Giving its observation on the provision of polygamy in Islam, the Allahabad High Court said that though it was permitted in Islam to go for more than one marriage under certain circumstances and with certain conditions, this permission was being ‘widely misused’ by even going against the mandate of Muslim law.The bench, comprising Justice Arun Kumar Singh Deshwal, said polygamy had been permitted, conditionally, by the Holy Quran in early Islamic times for rehabilitation of widows and orphans after heavy wartime casualties but now the said provision was being misused for ‘selfish purposes’.The observation came from the bench while hearing a petition by Furqan and two others challenging chargesheet as well as summon order by a Moradabad court under Sections 376(rape), 495 (second marriage with concealment of former marriage) 120-B ( criminal conspiracy), 504 (insult) and 506 (criminal intimidation) of IPC.An FIR was lodged by the opposite party no. 2 (wife) alleging Furqan married her without disclosing to her that he was already married and that he raped her during the marriage. Furqan contended that the woman admitted to having married him after a relationship.His counsel argued that no offence under Section 494 IPC would be made out against him as, under Muslim Law and the Shariat Act, 1937, a Muslim man was permitted to marry up to four times. It was also submitted that all issues regarding marriage and divorce had to be decided as per the Shariat Act, 1937, which also permitted the man to get married again even during the lifetime of the previous spouse.It was further submitted by the petitioner’s lawyer that since the 1937 Act is a Special Act, while IPC is the General Act, the former will have an overriding effect over the latter. It was also submitted that in Muslim Law, the second marriage was not void if the first marriage was performed as per Muslim Law.Meanwhile, the state counsel disputed this submission by contending that a second marriage performed by a Muslim man would not always be valid if in case the first marriage was not performed as per Muslim law but as per Special Act or Hindu Law.In such a situation, a second marriage would be void and punishable under Section 494 IPC. The court referred to the concept of nikah (marriage) as per Muslim Personal Law and other authorities on Muslim Law to note that a plurality of marriages was not unconditionally conferred on the husband.The court said that if a Muslim male had married as per Muslim law, his second, third or fourth marriages were not void, hence, Section 494 IPC was also not to be invoked for second marriage, except in cases of second marriage declared ‘Batil’ (void) as per Shariat by Family Court.Secondly, if first marriage was under Special Marriage Act, 1954, Foreign Marriage Act, 1969, Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936 and Hindu Marriage Act, 1955, and second marriage is as per Muslim law, after conversion to Islam, it will be void and punishable u/s 494. The court referred to judgment in case of Jafar Abbas, wherein it was observed that the Holy Quran forbade polygamy if purpose of marrying more than once was self-interest or sexual desire and further observed that it was for Maulvis (clerics) to ensure Muslims did not abuse the Holy Quran to justify polygamy for vested interest.In this case, the court also held there was no law which declared second marriage under Muslim law void, therefore, it would not be punishable u/s 494 IPC. On whether a second marriage contracted by a Muslim could be declared void, court opined it would be void if declared Batil (void) by Shariat, especially if performed within prohibited degree of relationship.Thus, issuing notice to the opposite party, the court in its order, dated May 8, stayed any coercive action against the applicant and ordered to list the matter in the week commencing May 26.
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