The Supreme Court has reopened an important constitutional debate surrounding polygamy under Muslim personal law. The Court has sought the Centre’s response to a petition challenging the legal framework that permits a Muslim man to have more than one wife.
Supreme Court Examines Challenge to Polygamy Under Muslim Personal Law
The development comes almost nine years after the Supreme Court’s landmark 2017 judgment on instant triple talaq. While that judgment invalidated instant triple talaq, questions concerning polygamy and nikah halala were left unresolved. The latest proceedings could bring those issues back into focus.
Why is polygamy before the Supreme Court?
A group of women’s rights activists has approached the Supreme Court arguing that the existing legal position creates unequal treatment between different religious communities.
The petition challenges Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, to the extent that it is relied upon to recognise Muslim personal-law rules concerning polygamy.
The petitioners want the law against bigamy to operate uniformly and have asked that polygamy be treated as unconstitutional. They have also argued that the practice affects women’s rights to equality, dignity and protection under the Constitution.
The Court has now asked the Union government to respond and has also raised the broader question of whether legislative measures should be considered to prohibit polygamy irrespective of religion. Importantly, the Supreme Court has not yet declared polygamy unconstitutional.
What does the current legal framework provide?
Under Section 82 of the Bharatiya Nyaya Sanhita (BNS), marrying another person while an existing marriage is legally continuing can attract criminal punishment, including imprisonment of up to seven years.
The petitioners contend that the provision does not operate in the same manner for Muslim men because marriage and related matters are governed by Muslim personal law.
They argue that this creates a difference in the legal protection available to women depending on their religious community. According to the petition, such differential treatment needs to be tested against constitutional guarantees of equality and non-discrimination.
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What are the petitioners asking for?
The Bharatiya Muslim Mahila Andolan, along with other activists, has sought several legal changes.
Their demands include:
- Making polygamy legally punishable.
- Removing the exemption that, according to the petitioners, permits Muslim men to enter subsequent marriages while an earlier marriage continues.
- Making registration of Muslim marriages and divorces compulsory.
- Providing stronger protection to the first wife and her children where a subsequent marriage takes place.
- Creating an effective mechanism for maintenance and other financial protections.
- Considering a formal codification of Muslim personal law in accordance with constitutional principles of equality and gender justice.
The petitioners have particularly relied on Articles 14, 15 and 21 of the Constitution, arguing that women should not be denied equal legal protection because of the personal-law framework applicable to their marriage.
What did the Supreme Court say about triple talaq?
The issue has a direct connection with the Supreme Court’s 2017 decision in Shayara Bano v. Union of India.
In that case, the Court struck down the practice of instant triple talaq. Parliament subsequently enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which made the practice punishable.
However, the 2017 proceedings did not settle the constitutional validity of polygamy. The question of nikah halala was also not finally decided.
That means the present challenge is not simply a repeat of the triple talaq case. Instead, it asks the Court to examine a different aspect of Muslim personal law through the constitutional principles of equality, dignity and religious freedom.
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Supreme Court’s earlier rulings on second marriage
The Supreme Court has previously dealt with situations where a person converted to Islam in an attempt to enter another marriage without legally ending the first one.
In Sarla Mudgal v. Union of India (1995), the Court held that conversion to Islam does not automatically dissolve an existing Hindu marriage. A person cannot use conversion merely as a route to marry again while the first marriage remains legally valid.
The Court reaffirmed this position in Lily Thomas v. Union of India (2000).
However, those decisions did not directly determine whether polygamy itself, when governed by Muslim personal law, violates Articles 14, 15 or other constitutional protections.
The Quran and the essential religious practice question
Another important issue could be whether polygamy is an essential religious practice protected by Article 25 of the Constitution.
The petitioners have referred to the Quranic provision concerning marriage to argue that permission for multiple marriages is conditional and connected with the requirement of treating wives justly. They contend that this does not necessarily establish polygamy as an essential religious obligation.
This could lead to a larger constitutional question: where a religious practice is claimed to have personal-law protection, how should that protection be balanced against equality, dignity and gender justice?
The Court’s eventual examination may therefore involve both personal law and the constitutional limits on religious freedom.
What is nikah halala?
Nikah halala is another practice that has previously been challenged before the Supreme Court.
Broadly, the controversy concerns circumstances in which a divorced Muslim woman, under certain interpretations, would have to marry another man and subsequently end that marriage before she could remarry her former husband.
The Supreme Court had earlier indicated that challenges concerning polygamy and nikah halala could be considered by a Constitution Bench. These issues were not conclusively settled in the 2017 triple talaq judgment.
What happens next?
For now, the case is at the stage where the Centre has been asked to respond. There is no Supreme Court ruling banning polygamy at this stage.
The proceedings could eventually require the Court to examine several competing constitutional principles, including:
- Equality before law
- Protection against discrimination
- Right to dignity
- Freedom of religion
- The role of personal laws
- Gender equality
- The power of Parliament to reform personal laws
The outcome could have significant implications for the legal framework governing marriage and personal law in India. However, the final position will depend on the Court’s subsequent hearings and any decision it ultimately delivers.
Key takeaway
The Supreme Court has not banned polygamy. It has sought the Centre’s response to a constitutional challenge and has opened the door for a fresh examination of whether the existing legal framework is consistent with equality and other fundamental rights. The case could become an important next chapter in the constitutional debate that began with the triple talaq litigation.