AMONG Prime Minister Narendra Modi’s oft-reported speeches during his time as Gujarat Chief Minister was the one in which he said “ hum paanch, hamare pachees ” (we are five and we will have 25 offspring) to mock the Muslim community. He made the remark in 2002 in the aftermath of the Gujarat carnage, to equate the relief camps for Muslim victims with “baby-producing centres”. The phrase gained currency among Hindu zealots, who made it appear as if the practice of bigamy was prevalent only among Muslims. In fact, the 1961 Census and a government report released in the 1970s suggested that Hindus were more bigamous than Muslims. The data released then revealed that the rate of polygamy was 5.8 per cent among Hindus and 5.7 per cent among Muslims.
The subsequent Census results have not provided data relating to the practice of bigamy among various religious groups. But there are impressionistic studies, carried out by highly reliable bodies, in the context of the reform of existing laws relating to bigamy, and these are useful in efforts to understand the extent of the problem.
Marriage laws in India, other than that of Muslims, prohibit bigamy and treat a bigamous marriage as void. In August 2009, the Law Commission brought out a report (No. 227), “Preventing Bigamy via Conversion to Islam: A proposal for giving statutory effect to Supreme Court rulings”. The report, submitted to the Central government by the then Chairperson of the Law Commission, A.R. Lakshmanan, brought to light the fact that Hindu married men converted to Islam in the belief that such conversion enabled them to marry again without the dissolution of an existing marriage.
The Supreme Court outlawed this practice by its decision in Sarla Mudgal vs Union of India in 1995. The ruling was reaffirmed in Lily Thomas vs Union of India in 2000. In view of these rulings, the Law Commission suo motu took up a study of the legal position on bigamy and of the judicial rulings on the subject in order to suggest changes in family law statutes.
The study was prompted by the discovery that the Supreme Court’s decisions on the subject were widely violated across the country. The Commission found that many instances of married men claiming to have converted to Islam in order to marry again had gone unnoticed. It felt that the introduction of new provisions in existing legislation governing marriages among various communities would make clear the legal position as clarified in Supreme Court rulings.
Conversion for a second marriage The Commission observed in Chapter VI of the report that a second marriage by a married non-Muslim man after conversion to Islam was a common practice in India. Such men were given to understand by lawyers ignorant of the true import of Islamic law that on conversion to Islam they were legally free to marry again irrespective of their existing marital status, the Commission pointed out. It added that this mistaken belief militates against the letter and spirit of the Islamic law on marriage.
According to the Commission, if the conversion is genuine, a second marriage can be allowed subject to the condition of equal treatment of the wives, which is not likely in such cases. The marriage contracted after conversion would hence be repugnant to the Islamic religion and law, the Commission said in the report. The Commission cited the Prophet’s general verdict that the “effect of an action is governed by the underlying intention” and was of the view that a conversion motivated by the desire for another wife was of doubtful religious validity.
‘Fraud on Hinduism, disgrace to Islam’ The Commission was also harsh on bigamous Hindu men and said that such men committed a fraud on Hinduism, were a disgrace to Islam and a cruel joke on the freedom-of-conscience clause in the Constitution and were guilty of criminal scheming against the law of the land. The report recommended that in the Hindu Marriage Act, 1955, a Sub-section 17-A be inserted to the effect that a married person cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with the law and that if such a second marriage is contracted, it should attract the application of Sections 494-495 of the Indian Penal Code (IPC).
Section 494 seeks to punish the offence of marrying again during the lifetime of a spouse with imprisonment of up to seven years and a fine. Section 495 seeks to punish the offence of concealing the fact of the first marriage from the person with whom the subsequent marriage is contracted, with imprisonment of up to 10 years and a fine.
The Commission recommended that both these offences be made cognisable by necessary amendments in the Code of Criminal Procedure, 1973 (at present, they are non-cognisable and bailable). While offences under Section 494 are compoundable by mutual consent of the parties involved, those under Section 495 are non-compoundable. Only Andhra Pradesh has amended these provisions to make them cognisable, non-bailable and non-compoundable.
The IPC provisions relating to bigamy apply to women among Muslims because Muslim law treats a second bigamous marriage by a married woman as void, but not to men as under a general reading of the traditional Muslim law men are supposedly free to contract plural marriages. The Commission opined that the veracity of this belief needs careful scrutiny. The anti-bigamy provisions of the IPC would not apply to tribal men and women if their customary law and practice do not treat plural marriages as void.
The Law Commission recommended the insertion of similar provisions into the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, and the Dissolution of Muslim Marriages Act, 1939. It also recommended that the proviso to Section 4 of the Dissolution of Muslim Marriages Act, 1939—saying that this section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith—be deleted.
In the Special Marriage Act, 1954, the Commission recommended the insertion of a new provision to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious owing to a change of religion by either party it will thenceforth be governed by the provisions of the SMA, including its anti-bigamy provisions.
None of these recommendations have been implemented so far, though the Law Commission stands vindicated by subsequent Supreme Court judgments on the subject.
On February 9, 2015, a Supreme Court bench comprising Justices T.S. Thakur and Adarsh Kumar Goel upheld the constitutional validity of Rule 29(1) of the Uttar Pradesh Government Servant Conduct Rules, 1956, which treats the bigamous marriage of an employee contracted without the government’s permission as a misconduct punishable by removal from service ( Khursheed Ahmad Khan vs State of Uttar Pradesh ).
The bench relied on a previous decision of the court in Javed vs State of Haryana (2003) to hold that what is protected under Article 25 of the Constitution is religious faith and not a practice that may run counter to public order, health or morality. The court held that polygamy was not an integral part of religion and mandatory monogamy was a reform within the power of the state under Article 25. The bench observed that a practice did not acquire the sanction of religion simply because it was permitted. Such a practice, it held, could be regulated by law without violating Article 25.
The Law Commission’s 227th report, however, has faced some criticism. According to the legal scholar Rohit De, by targeting bigamy through conversions, the report implies that Muslim personal law is to blame for this problem.
More disturbingly, he says, the report and the Supreme Court judgments on the issue express little sympathy for the position of the second wife. In his opinion, the legal refusal to recognise the second marriage often leaves the other woman vulnerable and without rights.
V. Venkatesan
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