In a strongly-worded order, the Gujarat high court on Friday said the Quran was being misinterpreted by Muslim men to have more than one wife and the provision of polygamy was being misused by them for “selfish reasons”.
The high court also stated that time has come for the country to embrace the uniform civil code as such provisions are in violation of the Constitution.
Justice J B Pardiwala made these observations while pronouncing the order related to Section 494 of Indian Penal Code, which deals with punishment for having more than one wife.
The petitioner, Jafar Abbas Merchant, had approached the high court to quash an FIR against him filed by his wife who alleged that he got married to another woman without her consent.
In the FIR, she invoked section 494 of IPC (marrying again during lifetime of husband or wife) against Jafar.
In his plea, Jafar, however, claimed that the Muslim Personal Law allows Muslim men to marry four times and hence the FIR against him does not stand legal scrutiny.
In the order, Pardiwala noted, “The Quran is being misinterpreted by Muslim men to have more than one wife.”
“When the Quran allowed polygamy, it was for a fair reason. When men use that provision today, they do it for a selfish reason. Polygamy finds mention in the Quran only once, and it is about conditional polygamy,” the order said.
“Muslim Personal Law does not permit a Muslim to treat one wife cruelly, drive her out of the matrimonial home and then get married for the second time. However, there is no law in this country which takes care of this situation. There is no uniform civil code in this country,” it said.
The high court put the onus on the government to do the needful with regards to the uniform civil code.
“On the basis of modern, progressive thinking, India must shun the practice and establish uniform civil code,” stated the judgment.
The court further observed that the permission to have four wives under Muslim Personal Law violates Constitutional provisions.
“Polygamy and the unilateral talaq without the wife’s consent offends Article 14 (equality before law for all) and Article 15 (the state’s non-discrimination on grounds of caste, religion, sex, etc). If the state tolerates this law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws,” the court said in its order.
While mentioning several verses of the Quran as well as statements of noted scholars, the HC said “it is abundantly clear that notwithstanding there is no codification by the legislation of marriages amongst the Muslims, polygamy is not encouraged and is an exception and not a rule. It is not the fundamental right of a Muslim to have four wives”.
The court also gave a verdict in favour of Jafar and removed section 494 from the FIR, as being a Muslim, he is governed by the Muslim Personal Law, which allows him to have more than one wife, and not under the IPC.
“In view of the above, so far as the offfence punishable under Section 494 of IPC is concerned, I am left with no other option but to accept the submission that Jafar cannot be prosecuted for the offence punishable under Section 494 of IPC. To this extent, the petition will have to be allowed and is, accordingly, allowed,” stated the order.
Photograph: Amit Dave/Reuters