Is It Time To End Muslim Polygamy In India?

The old wife and the new, 1935 (Azimzade/ Public Domain)
Though the practice of polygamy has been outlawed for most communities in India, Muslim men may still have up to four wives.

According to 2006 National Family Health Survey (NFHS) data, two percent of women in India reported being in a polygamous marriage – that is, their husbands had other wives at the same time as them.

Being one of many wives is a reality for millions of women in India. The 2011 Census recorded six million more married women than there were men. The reasons for this are manifold – one being that the husbands don’t live in India – but the sanction of polygamy among certain communities is an undeniable factor.

Polygamy in India is a carefully navigated practice that exists in between legalities. With the Hindu Marriage Act of 1955 – which governed marriage laws for Hindus, Jains and Sikhs – polygamy was prohibited for most Indians, with marriages declared void if either had another spouse at the time. But since laws governing religious aspects are religion-specific, the practise of polygamy remains tentatively legal amongst India’s Muslim community.

When the Indian Republic was formed, religious reforms were taken up on a piecemeal basis. Separate Acts were passed for each religion with regard to their personal laws. The Hindu Code Bill, introduced in the Constituent Assembly in 1948, was broken up and later debated as three separate Acts in the 1950s. The Hindu Marriage Act of 1955 explicitly forbade polygamy.

Minorities were governed under existing personal laws. For Christians, this was the Christian Marriage Act of 1872. For Parsis, the Parsi Marriage and Divorce Act of 1936. And for Muslims, the Muslim Personal Law (Shariat) Application Act, 1937.

The task of interpreting and defining what aspects of Sharia law could apply was left to the Muslim people, and the All India Muslim Personal Law Board (AIMPLB) was set up in 1973 for this purpose. But the task of periodically taking their opinions and legislating laws was left to the courts – most prominently, the Supreme Court of India.

On the basis of religious tenets found ‘essential’, the Supreme Court rules whether practices such as polygamy and triple-talaq (instant divorce) are legal. Every announcement of the courts on these matters sparks a nationwide debate. Hindus often take offence that Muslims enjoy liberties that the Hindus do not (the freedom to have multiple wives, conduct divorces by Whatsapp, etc), while the AIMPLB takes umbrage at any perceived assault on their religious freedoms.

But, on issues that concern Muslim women, an effort is being made to have a distinct voice from the men. The Bharatiya Muslim Mahila Andolan (BMMA – All India Muslim Women’s Association), which claims 70,000 members in its ranks, included polygamy in a draft Muslim Marriage and Divorce Act. The inclusion was to make it illegal.

Based on polls conducted among their members, the BMMA said that banned polygamy was what Muslim women wanted. It was a rare insight into what women thought about the issue of sharing a husband.

For, the issue of reforming Muslim Personal Law has oft been hijacked by communal politics and the accusation of favouritism (today clubbed with ‘sickularism’) towards governments that don’t change the laws. But taking a human rights perspective on polygamy yields disturbing results.

In a study conducted among married women in polygamous and monogamous relationships within the Arab world, the former displayed a markedly lower sense of self-esteem. In other studies, the situation was found to be worse for the older wives – who faced depression, anxiety and self-esteem issues.

Many years before these studies, these very issues drove Indian Muslim women to the courts – seeking the right to file for divorce. The Dissolution of Muslim Marriages Act of 1939, according to Rohit De of Princeton University, was a “radical piece of social legislation that gave South Asian Muslim women greater rights for divorce than those enjoyed by other women in India and Britain.”

The case of Asghar Begum illustrates the mental torment of the dispensable wife. After marrying in 1950, she discovered that her husband was having an affair. When she confronted him on this, she was beaten and her ornaments were taken away. She fled to her mother’s home and filed for maintenance on the grounds of being his wife. But by then, he had married his lover – and filed for the court to restore Asghar to him as a ‘restitution of conjugal rights’.

The court case boiled down to whether Asghar could refuse to return to her husband on the grounds that he had married another. Should the decision to marry again be taken unilaterally? At the time, Justice Dhavan held that taking a second wife would be a ‘stinging insult’ to the first. But he also stated unequivocally that:

A Muslim has the undisputed legal right to take as many as four wives at a time.

Asghar was permitted her alimony.

In a similar case in Pakistan in 1999, the Lahore High Court also took up the plight of the first wife, when it observed:

Such conduct of the husband towards the wife certainly breaks her heart if not the bones and when [the] heart is broken it is simply immaterial if the bones are intact.

Women in polygamous relationships are seldom in it out of a sense of free-for-all kinship. Marriage is professed largely on the basis of having children – and those women who cannot produce them are sidelined for the next wife who can. Indeed, a Princeton study found that there was little to differentiate polygamy rates between communities along religious lines – the real factor driving polygamy in India was infertility.

In 2015, the Supreme Court ruled in favour of an Uttar Pradesh government decision, that sacked a Muslim government employee who had taken a second marriage without taking permission from the Government, as per the rules of service. The court referred a previous judgement, stating:

Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25.

This was widely interpreted to mean that polygamy was now illegal – it was really only affirming the government’s right to encourage monogamy among its ranks.

Existing Muslim Personal Law continues to govern these matters in the absence of a Uniform Civil Code. The debate on the latter remains a pandora’s box of tensile arguments and mud-slinging.

In the United States, a 2017 Gallup survey found that 17 percent of Americans now support polygamy. The difference between this and the form practised in India, is that women too should be given the right to have multiple husbands. And polygamy should never come without both partners consent – otherwise, it accompanies significant mental trauma and heartbreak.

Another argument against male-driven polygamy is India’s skewed gender ratio. India is expected to have roughly 40 million more marriageable men than there are women in the coming decades. Permitting men to marry multiple women and not the other way around only adds to the dangerous number.

Whichever way it is looked at, India’s polygamy laws need conclusion. It persists across communities, with Buddhists having the highest number of partners according to the 2006 NFHS survey. There is a need to study polygamy’s real size, shape and ethical impact in India. A study needs to be made of the latest 2015-16 NFHS data, so the exact numbers can be known.

In 1987, the United Nations Committee on the Elimination of Discrimination against Women declared that polygamy contravened women’s rights to equality with men. It was only in 2015, in India, that the Supreme Court suggested that polygamy be permanently banned across the board. The issue of polygamy needs to be looked at from a human rights perspective, with religion no bar to the pursuit of gender equality.

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