Let’s Get The Law Right

Let’s get the law right Tahir Mahmood Two conspicuous cases of unlawful bigamy through the route of conversion to Islam have made headlines in recent days. In one of these, an already married prominent politician mysteriously disappeared and surfaced a month later with a new bride claiming that they had become husband and wife under the law of Islam to which both of them had since converted. In the second case, another married man — an army physician serving in Afghanistan — converted to Islam in order to marry an Afghan Muslim girl serving him as an interpreter who discovered his marital antecedents only when he returned to India leaving her behind in Afghanistan. In the former case, the father of the bigamist husband, himself a seasoned politician, came to the rescue of the first wife vowing to look after her. In the latter case, the poor second wife was not that fortunate and had to come to India to knock for justice at the doors of the Indian government and courts. These are not the only instances where married non-Muslim men claiming to have converted to Islam have duped their first wives. Many such cases go unnoticed. Under the Indian Penal Code of 1860 marrying again during the subsistence of an earlier marriage is an offence but only if the law applicable to such a case treats a bigamous marriage as void. Originally this provision applied only to the Parsis and Christians whose religious laws as codified in India in 1865 and 1872 respectively did not allow bigamy. After independence, the Hindu, Buddhist, Jain and Sikh communities were gradually brought within the purview of IPC’s anti-bigamy law. Within the first five years of independence laws to this effect were enacted locally in then Bombay, Madras and Central Provinces. Finally, the central Hindu Marriage Act 1955 dittoed this new legal policy providing that every bigamous marriage among these faith-groups would attract application of the IPC provision. Since then Muslims are the only major religious commu-nity — numerically the second largest in the country next to the Hindus — that has remained outside the scope of this law. The Muslim law on bigamy has been gravely misunderstood. It is generally believed — absolutely wrongly — that a married Muslim man is unconditionally allowed to marry again without getting his first marriage legally dissolved. The misconception is based on a terrible misreading of the Quran which during the seventh century had indeed admirably tried to limit the absolutely unrestricted custom of an undisciplined polygamy then prevailing in many societies. Allowing bigamy only as an exception, the Holy Book subjected it to the precondition of proven capacity to cohabit with the co-wives treating them with absolute equality and justice. Marrying again by deserting the first wife, now common in Muslim society, was not Islam’s concept of bigamy; no Muslim, born or convert, should be allowed to take such a perverted view of Islamic law. As regards converts to Islam opting for bigamy, their conversion has to be judged by the Prophet’s general verdict “Al-a’malu bin-niyyah” (effect of an action is governed by the underlying intention), and so conversion by a married man motivated by a desire to have another wife is of doubtful religious validity. But even where conversion seems to be genuine, it cannot be a licence for indulging in bigamy by deserting the first wife in violation of Islam’s insistence on treating co-wives with unexceptional equality and equal justice. The Supreme Court of India had settled the law once for all in its Sarla Mudgal ruling of 1995. The verdict was that a married non-Muslim cannot marry again even after converting to Islam unless his first marriage is dissolved under the law which governs it. Undoubtedly it was in conformity with the letter and spirit of Islamic law on bigamy. This is now the inviolable law of India whatever one may erroneously presume the Islamic law to be. The need of the hour is to turn the apex court’s ruling into a clear legislative provision inserted into all matrimonial-law statutes of the country. The writer is member, Law Commission of India.

"Loved reading this piece by ramesh ?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Join our Telegram group

Join our Whatsapp group