INTRODUCTION One of the major reasons for the

INTRODUCTION

Polygamy means a
marriage in which a person has more than one spouse. Polygyny is when a man
i.e. the husband has more than one wife. Polyandry is where a woman has more
than one husbands. These two are the more known form of polygamy. There is a
third type that is known as polyamory. This is a relationship of multiple men
and wife. Thus, a wife can have many husbands and the husband can have many
wives too.

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REASONS FOR POLYGAMY

It is necessary
to understand why polygamy was practised. One of the major reasons for the
prevalence of polygamy was that many wives could only be maintained by those
who could afford them. Thus, it was a symbol of wealth and influence. It was
also necessary for a man to carry on his family name. This acted as another reason
to have more than one wife especially if the first wife could not conceive or
only gave birth to daughters.1

However, in
poorer countries, sometimes marrying more than once could mean that the man
would get the help he needs. Often women’s family had to pay dowry when she got
married. Thus, marrying more than once meant, the dowry could help him
monetarily. Further, in regions where agriculture was the essential form of
occupation, marrying several times meant the man would get an extra hand. The wives
would help in the household chores, farming maintaining livestock, etc2.
In drought prone regions, men would marry multiple times as well. This was
because the nearest water source available was usually very far away. One wife
would only be able to carry so much water. Multiple wives meant more water
could be carried by them. In India, even today, to beat the drought, these
women exist.3

 

 

 

CASE ANALYSIS

Khursheed
Ahmad Khan v. State of U.P4.

FACTS

The appellant,
Mr. Khursheed Ahmad Khan was employed as Irrigation Supervisor in the
Irrigation Department by the Government of Uttar Pradesh. He was served with a
charge sheet based on the complaint made by Shagufta Parveen, sister of his
first wife. The charge sheet alleged that while he was married to Mrs. Sabina
Begum, he married Ms. Anjum Begum. This was a direct violation of Rule 29 (1)
of the Uttar Pradesh Government Servants Conduct Rules, 1956,5
(hereafter referred to as the “conduct rules”). Further it was alleged that he
had given misleading information to the authorities that he had given divorce
to Sabina Begum.

The appellant
denied the charge stating that the complaint made was due to personal enmity
that Shagufta had with the appellant. He had duly divorced his first wife,
before the second marriage. However, during the enquiry proceedings initiated
by the National Human Rights Commission, no information on record was found to
prove that he divorced his first wife.

The S.S.P.,
Moradabad also wrote to the department for taking action as per the prescribed rules.
Due to this the department initiated action. In the disciplinary proceedings,
an inquiry officer was appointed who gave a report that the charge was fully
proved.

The appellant
was then furnished a copy of inquiry report and given an opportunity to respond
to the same. His reply was proved to be not satisfactory in nature, thus, the
disciplinary authority imposed the punishment of removal on 17th June 2008.

Aggrieved by the
order of removal from service, the appellant filed a writ petition in 2008. He
impleaded his first wife as a respondent along with her sister. He additionally,
filed an affidavit of his first wife stating that the divorce had been taken
place in 1999 which was well before his second marriage in 2005. However, the
first wife filed a counter affidavit which denied that a divorce had ever taken
place. She relied upon the statement of the appellant on 3rd
December 2006 before the S.S.P., Moradabad in pursuance of order of the
National Human Rights Commission to the effect that both the wives were living
with him comfortably. She also stated that on legal advice, the appellant took
her signatures on blank papers which he later used to draft the affidavit in
support of the writ petition.

The High Court
after considering the submissions, dismissed the writ petition.

ISSUES

In the reached
the Supreme Court, there was only one issue which was to be interpreted:

1.     whether
the impugned Conduct Rule could be held to be violative of Article 25 of the
Constitution.

JUDGEMENT

The
court held that primarily that there is no substantial material on record to prove
that the appellant, Mr. Khursheed Khan, had divorced his first wife before he
solemnised the second marriage neither did he inform the Government about
contracting the second marriage. Thus, the second marriage amounts to a
misconduct under the Conduct Rules.

The
court stated that the High Court was justified in not believing the defence
given by the appellant that his first marriage had ended, especially since he
himself has admitted that his first marriage was continuing when he performed
second marriage and that the first wife of the appellant herself appeared as a
witness during the inquiry proceedings and stated that the first marriage was
never dissolved.

Further
the Supreme Court was in agreement with the High Court in holding that the
punishment of removal could not be held to be shockingly disproportionate to
the charge and did not call for any interference. Therefore, in the above
circumstances, the finding of violation of Conduct Rules cannot be held to be
unreasonable to call for interference by this Court.

The
Supreme Court held that the issue was not Res Integra6.
The Supreme Court referred to a number of cases while explaining how the
impugned Conduct Rule was not violative of Article 25 of the Constitution.

The
Supreme Court referred to Javed vs. State of Haryana 7in
which it was held that while polygamy was not an integral part of Islam,
monogamy was a reform of the state under the Constitution. The court further
held that simply because of the religion permitted it, does not mean it has the
sanction of law. It can be regulated without violating Article 25.

In
another case, the constitutional validity of the Bombay Prevention of Hindu
Bigamous Marriages Act (25 of 1946) was challenged on the ground of violation
of Articles 148,
159
and 2510
of the Constitution. The court held that there must be a distinction between religious
faith and belief; and religious practices. The duty of the State is to protect
religious beliefs and faiths. It has the power to regulate the religious
practices.11

The
court in the Khursheed Ahmad case reasoned that divorce did not exist in
ancient Hindu law. However, the current divorce laws cannot be said to be
contrary to Hindu religious belief.

Further,
in Badruddin
v. Aisha Begum12
the court held that the personal law of Muslims
permitted having as many as four wives but it could not be said that having
more than one wife is a part of religion. Any law in favour of monogamy does
not interfere with the right to profess, practise and propagate religion and
does not involve any violation of Right to Religion.

Another
case analysed by the Supreme Court was R.A. Pathan v. Director of Technical
Education13
 wherein it was held that a
religious practice simply connotes a mandate which a faithful man must carry out.
However, what is permissive under the scripture cannot be equated with a
mandate which may amount to a religious practice. Thus, the court stated that
there is nothing in the Quran that states that polygamy is a matter of
religious practice amongst the Muslims.

Thus,
the Supreme Court concluded that no religion in India dictates that a man must marry
more than once as an obligation. Just because a religion permits something, it
does not mean, it does not get a sanction under law. Thus, the Rule 29(1) of
the U.P. Government Servant Conduct Rules, 1956 is not in violation of Article
25 of the Constitution.

The
court further held that the will expressed by the legislature, constituted by
the chosen representatives of the people in a democracy, is the will of the
people. Thus, if they lay down the policy which states that monogamy tends to
the welfare of the State, then it is not for the courts of law to sit in
judgment upon that decision. Such legislation does not contravene Article 25(1)
of the Constitution.

ANALYSIS
In the above case, the law clearly stated that a Muslim man
who is employed by the state Government or the central Government cannot marry
more than once. If he does, then such a marriage will be a bigamous marriage
and will be void and illegal14.  Mr. Khursheed Ahmad Khan was working in the
irrigation Department and married Anjum Begum while he was married to Sabina
Begum. He did not have adequate proof to show that he had divorced his first
wife before marrying Anjum Begum. Thus, the court found him guilty of bigamy as
he had violated Rule 29 (1) of the Uttar Pradesh Government Servants
Conduct Rules, 1956.

While, the facts
of this case deal with Muslims in the Government posts who are expressly denied
to marry more than once, the court has gone into depth about the
constitutionality of banning polygamy for all Muslims.

India follows
the system of monogamy except for in terms of Muslim personal laws. While
Article 25 of the Constitution of India protects the Freedom to practice one’s
religion, the Government still has the right to regulate the activities
conducted in the name of religion15.
For example, the Sati system was abolished by the Government even though it was
a practice in Hindu law. Dowry, although was practiced since time immemorial in
India was also declared illegal for public policy and morality. Thus, the Government
on numerous occasions has regulated the regulated religious practices.

Further, Article
25 is violated when one cannot practice what is mandated by his religion.
Polygamy, although allowed under the Quran, is not a mandate. Not every Muslim
man needs to have more than one wife. If a Muslim was barred from praying
during Eid, it would amount to violation of Article 25 as he is being
disallowed from practicing what is an obligation under his religion. However,
this is not the case with polygamy. A Muslim man is permitted to marry more
than once but it is not a necessity. It is not an obligation he must follow to
practice his religion. The court has rightfully said in R.A. Pathan v. Director
of Technical Education16
that just because the religion allows it, does
not mean that is the law. Customs and usages get sanctity of law but at the
same time, it does not mean every custom or every usage can be made into a law.
The Government has the right to regulate the practices one follows in a
religion, especially if contravenes the social objectives of the society. Prevention
of a bigamous marriage fall within the ambit of the expression “social
welfare and reform” used in Sub-clause (b) of Clause (2) of Article 251718.

Also,
a law that promotes monogamy cannot be said to be interfering with the right to
practise one’s religion and thus, does not violate the Right to Religion
provided for under the Constitution. As stated above, monogamy does not
interfere with the mandates provided for under Islam. It is not a compulsion
and therefore, a Muslim cannot claim that his religious practices are being
affected by monogamy.

 

 

CONCLUSION

The
society is ever changing, and women are becoming more and more independent.
Polygamy was a valid tradition may be because then the women were always
dependent on the men in their lives. Further, polygamy also protected widows
from being harmed or left alone to fend for herself in a patriarchal society.
The ratio of man: woman was also less and therefore, in the name of protecting
women, men married more than once. However, all of this has changed now. Women are
starting to work and earn for themselves and their families. They are being
educated and taught to be self-reliant and independent. The law too must adapt
to these changes in the society.

Quran provides
for showing compassion to female orphans who have been neglected by society and
who are neglected, abandoned and destitute in life. It clearly states that if a
Muslim man meets a female orphan, he may, if it is agreeable to him, marry the
second time, third and fourth time provided he is capable to deal with such
wives justly and sufficiently19. Thus,
there is no religious command that directs a Muslim to marry more than once. Furthermore,
to marry again left to his choice. Therefore, it is clearly the discretion of
the man. Also, the permission to marry again is granted to him to only in a
case where he comes across a deserted female orphan who requires care,
protection and compassionate treatment. The bar to second marriage is removed
in such cases only if a Muslim is able to do justice to her, not otherwise20.
Since it is not a religious injunction, it is difficult to conclude that it is
a matter of religious practice.

                 Moreover, it is a purely permissive scriptural
provision which can be utilised only under a certain set conditions. A
religious practice ordinarily connotes a mandate which a faithful must observe
and carry out. If the non-believers break it, there is indeed no derogation
from the effect of that mandate. What is permissive under the scripture cannot
be equated to a law neither can it be said that it has the sanctity of law just
because the religion permits it.

In the
Constituent Assembly Debates on Article 25, the legislators stated that the
article was not completely on religious freedom only, but also on religious
toleration21. K. Santhanam also stated
that the full implications of public order, health and morality will change as
the society changes. It cannot be a constant and rigid concept22.
The Assembly also discussed the importance of the role of the Government to
prevent secular activities done in the name of religion that will negatively
affect the society at large. Thus, even the legislators intended to not make
the right under Article 25 an absolute right. They too, believed that the
Givernment must regulate the religious activities practiced to ensure that the
objective of protection for greater good is fulfilled.

1
McMahon, 2010

2
Jencks and Milton, 2010.

3
http://www.indiatimes.com/news/india/this-story-of-maharashtra-s-water-wives-is-as-heartbreaking-as-the-drought-itself-253278.html

4
Khursheed Ahmad Khan v. State of U.P. 24 SCD 361 (2015)

5
Bigamous Marriage: 1. No Government servant who has a
wife living shall contract another marriage without first obtaining the
permission of the Government notwithstanding that such subsequent marriage is
permissible under the personal law for the time being applicable to him.

6
a case or a question that has not been examined or passed upon

7
Javed vs. State of Haryana (1995) 3 SCC 635

8 Article 14: Equality before law The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth

9
Article 15: Prohibition of Discrimination
on Grounds of Religion, Race, Caste, Sex or Place of Birth

10
Article 25: Freedom of conscience and
free profession, practice and propagation of religion

11
State of Bombay v. Narasu Appa Mali AIR (1952) Bom 84

12
 Badruddin v. Aisha Begum (1957) All LJ
300

13
R.A. Pathan v. Director of Technical Education (1981) 22 Guj LR 289

14
Supra Note 5

15
Supra Note 11

16
Supra Note 13

17
Id

18 Article 25(1)(b): providing for social welfare and reform or the
throwing open of Hindu religious institutions of a public character to all
classes and sections of Hindus Explanation I The wearing and carrying of
kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be construed
as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly

19
http://www.quran-islam.org/articles/part_3/polygamy_in_quran_%28P1411%29.html

20
Verse 4.3: If you fear you will not be fair, then only one, or what your
right hand possesses

21
Tadepalli Apoorva. Constituent Assembly debate on
Freedom of Religion. Takshashila Blog. (2014). online Available at http://logos.nationalinterest.in/2014/06/constituent-assembly-debate-on-freedom-of-religion/
Accessed on 27 July. 2017

22
Id

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