- Advocate Vishnu Shankar Jain on the behalf of five individualshas filed petition in the Supreme Court for striking down Section 494 of the Indian Penal Code, 1860 seeking declaration of bigamy as unconstitutional for all religions.
- It has also prayed that Section 494 of Indian Penal Code, 1860 (IPC) and Section 2 of Muslim Personal Law (Shariat) Application Act,1937 both of which allows Muslim men to take more than one wife be declared unconstitutional.
WHAT ARE THE CONTENTIONS?
Petition states, "The second marriage solemnized by a Hindu, Christian or Parsi during the lifetime of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if contacted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India".
SECTION 494 OF IPC AND SECTION 2 OF MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT
- Section 494 of IPC provides that ‘Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine’.
- But according to Section 2 of Muslim Personal Law (Shariat) Application Act, “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).” Which means in respect of the mentioned matters, if both the parties to a case are Muslims, the courts shall apply only the Muslim personal law and nothing else.
- According to the petitioner in the plea “From the aforesaid provision it is clear that the offence of bigamy is punishable only when the second marriage is void. It means that the validity of second marriage depends on the recognition of such marriage under personal law”
- The petitioners has stated in the plea that as per Para 256 Muhamedan Law (Mulla Muhammdan Law) the marriage solemnized by woman during life time of her husband is void and she may be punished under Section 494 of IPC. “Therefore, a Muslim woman is being discriminated before law. The MuslimLaw even though permits male persons to have four wives at the time but at the same time para 256 forbids the female to contact another during the life time of her husband”.
- Further the petitioner has stated it is gender bias, discriminatory and ultra vires of Article 14 of the Constitution of India.
THE SCOPE OF ARTICLE 25
Petitioner has contended that Article 25 of the Constitution of India protects only the essential religious practices of a religion and personal law of the subjects, unconnected with religion, does not come within the scope of Article 25 of the Constitution of India. The practice of Bigamy is not an essential part of Muslims or any other religion, the plea states.