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Bigamy cannot be allowed for Muslims alone: Plea in Supreme Court challenges Section 494 IPC, Section 2 of Shariat Application Act

The practice of bigamy cannot be allowed for one religious community alone while it is prohibited for persons from other religions, a plea before the Supreme Court has stated seeking a declaration that the practice is unconstitutional, oppressive towards women and opposed to equality.

The petition filed by five individuals through advocate Vishnu Shankar Jain has also prayed that Section 494 of Indian Penal Code (IPC) and Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 both of which enable Muslim men to take more than one wife be declared unconstitutional.

“The second marriage solemnized by a Hindu, Christian or Parsi during the life time 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,” the petition states.

 

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’.

The petitioners pray that words ‘in any case in which such marriage is void by reasons of its taking place’ occurring in Section 494 of IPC be read down/strike down.

This part of Section 494 protects bigamous marriage among Muslim men since their personal law gives sanction for such marriages and it is the Muslim personal law which governs Muslims in matters of marriage and divorce due to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.

“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 result is that a second marriage solemnized by a Hindu, Christian or Parsi during the life time of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if conducted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is perse in violation of Article 14 and 15(1) of the Constitution of India,” the petition contends.

The primary argument raised in the plea is that State cannot make criminal law in such a manner that creates discrimination against some by making the same act may be punishable for someone “enjoyable” for others.

“Penal action cannot be differentiated on the basis of religious practice and penal law has to be made applicable uniformly having no relation with personal law applicable to the offender,” the petition states.

The plea relies on the 1996 judgment of the Supreme Court in C Masilamani Mudaliar & Ors. 1Vs. Idol of Sri Swaminathswami Thirukoil wherein it was held that women have right to elimination of gender-based discrimination and they have right to equality of status and opportunity which also forms part of the Basic Structure of the Constitution.

The petitioners have argued that Section 494 discriminates “only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”

Since, it is Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which makes Sharia law applicable to Muslim marriages and divorce, that provision has also been challenged for violation of Article 14.

The plea further seeks a declaration that the system of bigamous marriage is irrational, illogical, discriminatory and oppressive for women and ultra vires Articles 14 and 15(1) of the Constitution of India.

The Karnataka High Court had recently observed that though contracting a second marriage by a Muslim husband may be lawful, it often causes “enormous cruelty” to the first wife.

A Constitution Bench of the Supreme Court had, in August 2017, struck down the practice of instant triple talaq among Muslims as unconstitutional.

Source
Via Bar & Bench
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