POLYGAMY AND MUSLIM WOMEN'S LIVED REALITY

DAY 21 

POLYGAMY 

What have been the experiences of Muslim women with regards to polygamy? 

In a national study involving 289 Muslim women respondents and 50 in-depth case studies:

• Over 50% of the respondents suffer from mental trauma such as depression, self-blaming, lack of                sleep, frequent aches and pains and suicidal tendencies after their husbands’ remarried. 
• 41% had to move to their parent’s home after their husband remarried. 
• 47% of the respondents did not receive any maintenance from their husband after his remarriage. 
• 42% of the women were told by Qazi to adjust with his new marriage as it is allowed in the Shariat. 
• 22% were asked to take khula. 
• 45% of husbands threatened first wife with divorce if she complained against his second marriage. 
• To top it all, 90% of them said that their permission was not taken. 
• In fact 72% came to know about his second marriage through neighbors and friends. 

This is what happens to a victim of polygamy at ground zero. And this hard reality must never be ignored and hushed up. 

What do Muslim women want? 

According to the study mentioned above:

• 84% of Muslim women have stated that polygamy should be made illegal. 

• 73% have said that their husband should be punished for indulging in polygamy. 

In 2015 BMMA published a national study, ‘Seeking Justice Within Family’, on Muslim women’s views on reforms in the Muslim personal law. According to this study:

• 91.7% of 4710 respondents did not want their husband to have another wife while being married to            them. 

• Close to 73% said polygamy should not be allowed irrespective of the first wife’s consent. 83% did            not want polygamy even if the sex ratio favoured it. 

Constitutionally what safeguards does a Muslim women enjoys, or rather should enjoy vis-à-vis the practice of polygamy?

• Article 14 of Indian constitution of right to equality. Allowing men to have more than one wife is not only an affront to her dignity but a blatant violation of Article 14 of the Indian Constitution. 
• Article 15 states that there shall be no discrimination on the basic of religion, race, cast, gender, place of birth. 
• Article 21 states the right to life with dignity is a fundamental right of every individual. 
• Article 25 (2) says that right to freedom of religion is subject to morality public health and other        fundamental rights. 

A Supreme Court judgment looking at bigamous marriage in Khurshid Ahmed Khan vs state of UP and Orissa 9/2/2015, SC 1662/2015 argued that polygamy cannot be seen as an ‘integral part of religion’ and so does not receive constitutional protection under Article 25. It also argued that any law in favour of monogamy did not violate Article 25. Various High Courts have also made this case. Indian Constitution provides explicitly for equality and non-discrimination and protects personal laws insofar as they do not violate these essential articles. 

Is there a common law applicable to all citizens irrespective of religion, vis-à-vis polygamy?

In India all religious communities, majority and minority are governed by their own family laws according to their religious custom, traditions and holy book. At the same time as citizens of the country, all religious communities can also avail of the non-religious laws, for e.g. laws against dowry, rape law, law against domestic violence etc.  

As per the Indian Penal Code polygamy is a criminal offense under section 494. This law prohibits polygamy sentencing the said husband to 7 years of imprisonment. It is non-cognizable, bailable and compoundable. 

The Special Marriage Act, which is like an optional civil code and which governs inter and intra religious marriage also prohibits polygamy. 

What about the other communities in India? What laws govern them? 

If a person chooses to remain within her personal law, then she will be governed by her personal law. Let us look at the personal laws of each community to see what they say about polygamy. 

• The Parsi Marriage and Divorce Act of 1936 prohibits polygamy. Second marriage while the first is still subsisting is null and void. In addition, the law says that the party to indulges in bigamy will be subjected to the penalties of sections 494 and 495 of the IPC which calls for a 7-year imprisonment. 
• Christian Marriage Act says, “neither of the persons intending to be married shall have a wife or husband still living”. Offenders are governed by the IPC 494. 
• The Hindu Marriage Act of 1955 u/s 11 makes bigamous marriages void. Section 17 of the same Act along with IPC 494 and 495 makes it an offence. The Buddhists, Jains and Sikhs are included under this Act. So bigamous marriages for Hindus, Buddhists, Jains and Sikhs are void and penal 

Thus if a person marries more than once under Hindu Marriage Act, Parsi Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act and Foreign Marriage Act, he/she will be punished according to Indian Penal Code.

Is asking for a ban on polygamy not tantamount to disrespecting the Quranic injunctions? 

Three verses from the Quran very clearly support monogamy. 

• Verse 4:3 - “Marry women of your choice, two, three or four”
• Verse 4:3 - “..... but if you fear that you shall not be able to deal justly with them, then only one.”
• Verse 4:129 - “ You are never able to be fair and just as between women, even if it is your ardent                             desire”

These Quranic verses came in a certain context of war requiring polygamy to ensure justice to widows and orphans again in the context of a tribal 7th century Arabia. In today’s day and age of advanced women and human rights, increased gender rights consciousness, polygamy does not ensure dignity of an individual woman as we saw above in the first Q/A

Quran also talks of marriage as a solemn and sacred alliance between two people based on love, mercy, understanding. In a relationship that has other claimants, how can one achieve that Quranic ideal? 

Quran, which is primary source of shariah, is clear when it says that a man can never be just and equal to more than one wife. Polygamy existed before Islam and the Quran restricted it to 4 wives. This was done in order to set the trajectory for reforming this pre-Islamic practice in the direction of justice. If this trajectory had been followed, polygamy would have been abolished by now. 

The universal Islamic values of equality, justice, wisdom and compassion do not match with the unbridled right to polygamy enjoyed by men. Muslim laws, which claim to be shariah compliant cannot ignore these, core Islamic values as well as the contemporary, lived realities of Muslim women. 

What about polygamy in other Islamic countries?

• Tunisia became the first Arab state to formally abolish polygamy in 1956, the same year it gained official independence. In current times, Tunisia is still one of the very few predominantly Islamic nations that has legally banned polygamy.
• 99.8% of the Turkish population is Muslim with the most popular school of thought being the Hanafi school of Sunni Islam. Turkey is a predominantly Muslim nation that has abolished polygamy, which was officially criminalized with the adoption of the Turkish Civil Code in 1926, a milestone in Atatürk's secularist reforms. Penalties for illegal polygamy are up to 2 years imprisonment.
• The population of Tajikistan is 98% Muslim. In Tajikistan, bigamy and polygamy are criminal offences, punishable by fines of up to 80,000 somoni (10,000 US dollars) or a term of imprisonment up to five years. Bigamy was outlawed in 1999 and polygamy was banned in 2008.
• The Uzbeks are Sunni Muslims, and they are considered to be among the most devout Muslims in all of Central Asia. Thus, about three-fourths of the population is Muslim.
• Polygamy is illegal in Uzbekistan (punishable by up to three years imprisonment) and the nation does not provide for polygamous marriages under civil law or customary law.
• As of 1997, 86.3% of Kyrgyzstan were followers of Islam. The Criminal Code of the Kyrgyz Republic provides for two years of imprisonment for polygamy.
• Turkmenistan is 93% Muslim. Polygamy is prohibited by law in Turkmenistan and legal framework does not provide for polygamous marriages under civil law nor customary law. 
• Polygamy is restricted in Algeria, Bahrain, Malaysia, and Morocco and totally prohibited in Tunisia, Turkey, Kyrgyz Republic, Tajikistan and Uzbekistan. And they all happen to be Muslim majority countries. 

What international covenants come in handy for Muslim women in their quest for justice within family? 

India has ratified the CEDAW treaty, which has for its foundational principles, non-discrimination, substantive equality and state obligation. Article 16 of CEDAW says that state must take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. 

Indian state has to fulfill its obligation of making polygamy illegal for the Muslim community to ensure that Muslim women are treated on par with women of the other communities and also that Muslim women must also be treated as an equal citizen. It is the responsibility of the state to ensure that as citizens Muslim women are treated with dignity within their homes. In terms of human rights standards, polygamy is incompatible with fundamental human rights principle of equality between men and women; it contravenes the CEDAW article 1 definition of discrimination, and violates a woman’s right to dignity. The fact that women can be coerced into entering polygamous relationships or existing wives can be coerced into consenting to additional wives violates the free and full consent to marriage provision of numerous human rights instruments. Since a husband be choose to marry multiple women, which can affect the household finances, women in polygamous relationships are denied their equal rights with regard to property under CEDAW article 16 (1) (h)

The practice of polygamy is also in contravention of the SDG 5 which calls for and adopting, strengthening policies and enforcing legislation for gender equality which is one of the 17 Sustainable Development Goals established by the UN in 2015. SDG5 wants to “Achieve gender equality and empower all women and girls.”

So what should be done?

Indian Muslim community in matters of family must be governed by a comprehensively codified Muslim family law, which must abolish polygamy. In the codified law polygamy must be outlawed and IPC 494 must be made applicable to the Muslim community. 

BASED ON THE LIVED REALITIES OF MUSLIM WOMEN, INTERNATIONAL HUMAN RIGHTS STANDARDS, INDIAN CONSTITUTION AND THE QURAN, POLYGAMY IS UNTENABLE AND UNACCEPTABLE. INDIAN STATE MUST ABOLISH IT. 

References:

1. Status of Women in Polygamous Marriages and Need for Legal Protection, A Report by Bharatiya Muslim Mahila Andolan, 2018

2. Seeking Justice Within Family, A National Study on Muslim Women’s Views on Reforms in Muslim Personal Laws, 2015

3. CEDAW and Muslim Family Laws, In Search of Common Ground, Musawah, 2011.

4. Musawah - Knowledge Building Briefs 01