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The debate on preventing bigamy via conversion to Islam must focus on gender justice.


The Economic and Political Weekly

August 29, 2009


Editorial Bigamy and religion

The debate on preventing bigamy via conversion to Islam must focus on gender justice.

Suggestions of changes in personal laws usually result in the religious element getting undue publicity and attention while the core issue of gender justice gets sidelined. The reaction to the 227th report of the Law Commission of India,

“Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to Supreme Court Rulings”, which was presented to the Ministry of Law and Justice this month, has been no different.

Taking suo motu cognisance of the “unhealthy and immoral practice” by men whose “personal law does not allow bigamy of converting to Islam in order to contract a second marriage” and two recent, highly-publicised cases of bigamy, the commission suggested that the Supreme Court’s rulings in the Sarla Mudgal vs

Union of India (1995) and the Lily Thomas vs Union of India (2000) cases be incorporated into the Hindu Marriage Act (HMA) of 1955.

Women’s organisations taking up the cases of the first wives find that evidence of the second marriage is difficult (most of them are performed secretly or by token rituals like exchange of garlands in a temple) to come upon for criminal prosecution, for the courts demand hard proof. Though Section 494 of the Indian Penal Code (IPC) punishes bigamous husbands, if convicted, to a fine or seven years of imprisonment, or both, being a non-cognisable offence (except in Andhra Pradesh), it is ineffective. The Law Commission too endorses this when it says that the law related to monogamy under the HMA is full of serious shortcomings and loopholes, and combined with its provisions related to marriage rites, provides in-built devices (the foremost being conversion to Islam) for an easy avoidance of all the consequences of its violation, while the non-cognisable IPC provisions force “aggrieved first wives of all communities to silently suffer the miseries”.


It has thus recommended that a new section be inserted in the HMA to the effect that a married person governed by it cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted, it will be of no legal effect, and attract application of Sections 494 and 495 of the IPC. The commission has recommended that similar provisions be inserted in the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act (DMMA) of 1939. In respect of the latter, it has been suggested that the proviso to Section 4 of the DMMA, saying that this would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith, be deleted. Further, certain provisions should be added to the Special Marriage Act 1954 and offences relating to bigamy under the IPC sections should be made cognisable by necessary amendment of the Criminal Procedure Code (CrPC).


Sadly, instead of these recommendations being debated widely, it is the commission’s statements on the Islamic view of bigamy that have become the focus of attention. (The plight of the first wives of all communities, many of whom are “deserted” and have to fend for themselves and the children with or without paltry maintenance, quite apart from the social humiliation they and the children are subjected to, has been ignored.) These statements have managed to antagonise three sections of Muslim society. The orthodox elements are angered by what they see as “interference” in their personal law. Muslim women feel that the commission is only looking at the plight of the Hindu first wives and not Muslim women similarly situated. And, Muslim intellectuals feel that the report should make strong recommendations against bigamy for all communities without getting unduly side-tracked by religious sensitivities.


The statement, “Although we fully agree with the fact that traditional understanding of the Muslim law on bigamy is gravely faulty and conflicts with the true Islamic law in letter and spirit, to keep our recommendations away from any unhealthy controversy we are not recommending any change in this regard in Muslim law” has angered influential Muslim bodies, notably the Darul Uloom of Deoband and the All India Muslim Personal Law Board.


They have pointed out that Islam allows up to four marriages, albeit under stringent conditions, and it is wrong to say that it is against the letter and spirit of Islam. The Muslim Women’s Personal Law Board has asked for “control over the system” since the strict rules on bigamy are not being followed.


The commission’s full-time member Tahir Mahmood was forced to clarify that the Muslim law on bigamy or the state of bigamy among Indian Muslims was not at all the issue before the Commission and that the true nature of Muslim law on bigamy, which insists on equal treatment of co-wives and does not allow forsaking the first one without divorce, was explained only in the context of incorporating the apex court’s rulings in the HMA.


Notwithstanding the controversy, the commission’s suggestions pertain to an area that has long been ignored and where reform is needed. It is time to focus on gender equality and justice and demand implementation of the Law Commission’s recommendations.

Posted by c-info at Sunday, September 13, 2009  

Labels: Law, Marriage, Religion

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