Polygamy under Muslim Law in India: Constitutional, Statutory, and Judicial Perspectives

Polygamy under Muslim Law in India: Constitutional, Statutory, and Judicial Perspectives

Introduction

The permissibility of polygamy within Islamic personal law has long occupied a contentious position in Indian jurisprudence. While sharī‘ah historically tolerates limited polygyny, India’s plural legal system must reconcile that doctrinal allowance with constitutional mandates of equality, statutory prescriptions of monogamy applicable to other faiths, and evolving judicial approaches to gender justice. Recent cases such as Khursheed Ahmad Khan v. State of U.P. (2015) and the ongoing petitions in Sameena Begum v. Union of India (2018) demonstrate that the debate is far from settled. This article critically analyses the status of Muslim polygamy in India by examining scriptural foundations, statutory frameworks, constitutional constraints, and key judicial pronouncements.

Scriptural and Classical Underpinnings

The Qur’ānic verse traditionally cited to justify polygyny—Sūrah 4:3—permits marriage to “two, three or four” women only if the husband can deal justly with each.[1] Verse 4:129, however, cautions that achieving such justice is “never” possible, prompting many classical jurists to treat monogamy as the norm and polygyny as a circumscribed exception.[2] Indian High Courts have repeatedly affirmed this interpretive trend, observing that the Qur’ānic ideal is monogamy and that polygyny is tolerated, not encouraged.[3]

Statutory Landscape

2.1 Muslim Personal Law (Shariat) Application Act, 1937

Section 2 of the 1937 Act makes sharī‘ah the rule of decision in personal matters for Muslims, thereby preserving the permissive rule on polygamy.[4]

2.2 Criminal Law and General Statutes

Section 494 of the Indian Penal Code criminalises bigamy for persons “married under any law in force” that mandates monogamy. Because Muslim law permits polygamy, Muslim husbands are exempt from prosecution unless they marry under a monogamous statute such as the Special Marriage Act, 1954.[5]

2.3 Conduct Rules and Sector-Specific Regulations

Governments have introduced sector-specific restrictions. Rule 29(1) of the Uttar Pradesh Government Servants’ Conduct Rules, upheld in Khursheed Ahmad Khan, disciplines Muslim civil servants who contract a second marriage without prior permission, reflecting the State’s compelling interest in monogamy within public service.[6]

Constitutional Dimensions

3.1 Article 25 and the Nature of Religious Freedom

Polygyny is not an obligatory practice but merely permissible under Islamic law; therefore, it does not enjoy absolute protection under Article 25.[7] The Supreme Court in Javed v. State of Haryana held that a practice which is optional cannot claim the same level of constitutional immunity as one that is fundamental to religion.[8]

3.2 Articles 14 and 15: Equality and Non-Discrimination

Differential treatment between communities regarding marriage laws has been challenged under Articles 14 and 15. Yet the Bombay High Court in Narasu Appa Mali upheld reform legislation applicable only to Hindus, stressing that personal laws themselves are not “laws” within Article 13 and hence may be reformed piecemeal.[9] The Court nonetheless acknowledged that a Uniform Civil Code (UCC) would best realise equality.[10]

3.3 Directive Principles: Article 44

Judicial dicta—from Sarla Mudgal to Lily Thomas—reiterate that Article 44 envisions eventual uniformity in civil law, with monogamy as a core objective.[11]

Key Judicial Pronouncements on Polygamy

4.1 Conversion-Based Bigamy: Sarla Mudgal & Lily Thomas

In Sarla Mudgal (1995), Hindu husbands who converted to Islam solely to practise polygamy were held guilty under IPC §494; conversion did not dissolve the prior Hindu marriage.[12] Lily Thomas (2000) reaffirmed this principle and dismissed review petitions, underscoring that personal liberty cannot be invoked to perpetrate bigamy.[13]

4.2 Constitutional Validity of Anti-Polygamy Measures: Javed and Khursheed Ahmad Khan

Javed (2003) sustained a two-child norm disqualifying bigamous individuals from contesting panchayat elections. The Court rejected the argument that polygyny is a protected religious practice, emphasising the State’s duty to promote monogamy for social welfare.[14] Similarly, in Khursheed Ahmad Khan (2015) the Supreme Court upheld disciplinary action against a Muslim employee for contracting a second marriage without dissolving the first, holding that Article 25 does not shield practices contrary to public order, health, or morality.[15]

4.3 Judicial Restraint and the Legislative Domain: AWAG v. Union of India

In 1997 the Supreme Court dismissed PILs seeking direct judicial abolition of polygamy, reiterating that comprehensive reform of personal laws lies primarily with the legislature.[16]

4.4 Equity-Based Restrictions: High Court Jurisprudence

  • Itwari v. Asghari (1960, Allahabad HC): Restitution of conjugal rights was refused to a husband who had taken a second wife, the Court holding that polygamy is tolerated but disfavoured and that equity may deny relief.[17]
  • Keralite Line of Cases: Shahulameedu (1969), Amina (1985) and Abdurahiman (2010) interpret Qur’ānic verses as counselling monogamy, thereby enabling courts to scrutinise equitable treatment among co-wives under the Dissolution of Muslim Marriages Act, 1939.[18]

Impact on Women’s Rights

Empirical studies indicate that fewer than five percent of Muslim marriages in India are polygynous, a statistic corroborated by observations in Chandra Pal v. Keshav Deo (1989).[19] Nevertheless, the legal permissibility of polygamy perpetuates vulnerabilities: unequal bargaining power, economic insecurity, and psychological distress. Statutory fallback safeguards—maintenance under CrPC §125 or divorce under the 1939 Act—remain remedial rather than preventive. The judiciary’s incremental approach has thus far prioritised equity and public policy while avoiding outright invalidation.

Comparative and International Perspectives

Several Muslim-majority jurisdictions (e.g., Tunisia, Morocco, Pakistan) either prohibit or severely restrict polygyny through administrative permissions or judicial oversight.[20] Indian courts have frequently referenced these reforms to illustrate the compatibility of anti-polygamy measures with Islamic jurisprudence and to dispel the notion that monogamy contravenes religious freedom.[21]

The Path Forward

The constitutional balance between religious freedom and gender equality is increasingly tilting towards the latter. The pending Sameena Begum petitions signal judicial willingness to revisit polygamy directly. Legislative intervention, however, would provide democratic legitimacy and comprehensive safeguards. A calibrated model could adopt Pakistan’s Arbitration Council mechanism or Tunisia’s outright prohibition, tailored to Indian socio-legal realities. Ultimately, effective reform must harmonise sharī‘ah principles of justice with constitutional guarantees of dignity.

Conclusion

Indian jurisprudence has progressively constrained, though not abolished, Muslim polygamy by employing constitutional scrutiny, equity principles, and sector-specific regulations. The practice is neither a fundamental religious mandate nor immune from reform. Given the constitutional commitment to equality (Articles 14–15) and the Directive Principle of a Uniform Civil Code (Article 44), a legislative framework promoting monogamy across communities appears both desirable and constitutionally defensible. The judiciary’s evolving stance offers robust doctrinal support should Parliament choose to act.

Footnotes

  1. Qur’ān 4:3.
  2. Qur’ān 4:129; see Amina v. Hassan Koya, Kerala HC, 1985.
  3. Shahulameedu v. Subaida Beevi, Kerala HC, 1969; Itwari v. Asghari, AIR 1960 All 684.
  4. Muslim Personal Law (Shariat) Application Act, 1937, §2.
  5. Indian Penal Code, 1860, §494; Special Marriage Act, 1954, §§4(c), 44.
  6. Khursheed Ahmad Khan v. State of U.P., (2015) 8 SCC 439.
  7. Javed v. State of Haryana, (2003) 8 SCC 369.
  8. Id. at ¶35.
  9. The State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72.
  10. Id. at ¶12.
  11. Sarla Mudgal v. Union of India, (1995) 3 SCC 635; Lily Thomas v. Union of India, (2000) 6 SCC 224.
  12. Sarla Mudgal, (1995) 3 SCC 635.
  13. Lily Thomas, (2000) 6 SCC 224.
  14. Javed, (2003) 8 SCC 369.
  15. Khursheed Ahmad Khan, (2015) 8 SCC 439.
  16. Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573.
  17. Itwari v. Asghari, AIR 1960 All 684.
  18. Shahulameedu, Kerala HC, 1969; Amina, 1985; Abdurahiman v. Khairunneesa, 2010.
  19. Chandra Pal v. Keshav Deo, 1989 SCC OnLine All 101.
  20. Preamble and Article 18, Tunisian Code of Personal Status (1956); §6, Pakistan Muslim Family Laws Ordinance (1961).
  21. Shahulameedu, 1969; see also Justice Hidayatullah’s Introduction to Mulla’s Principles of Mahomedan Law, 16th ed.