A petition has been moved in the Supreme Court seeking a declaration that the practice of bigamy cannot be allowed for one religious community alone while it is prohibited for persons from other religions. The plea contends that the practice is unconstitutional, oppressive towards women and opposed to equality.
What Does the Petition Contend?
The petition filed by advocate Vishnu Shankar Jain on behalf of five individuals, has prayed to strike down Section 494 of Indian Penal Code and Section 2 of Muslim Personal Law (Shariat) Application Act 1937, both of which enable Muslim men to take more than one wife.
“The second marriage solemnized by a Hindu, Christian or Parsi during the lifetime of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if contacted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India,” the petition states.
On the other hand, Section 494 of IPC provides that ‘Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of it taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine’. Therefore, it was submitted that the practice adopted by a religious group cannot be a basis to exclude such person from the purview of penal action which is otherwise punishable for others.
In the present case, Muslims are excluded from the penal law related to bigamy whereas other citizens are liable to be punished for the same act. It is stated that the petition has been filed under Article 32 of the Constitution of India to declare that the bigamy in so far it has been made applicable in India by Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 is ultra vires to Article 14 of the Constitution of India and by virtue of Article 13(1) of the Constitution same has become void and non-est.
It was further asserted that the main aim of the present petition is that a State cannot make criminal law in such a manner that creates discrimination by making the same act (bigamy) punishable for some ‘enjoyable’ for others.
“In India, the irony is that bigamy has been made punishable under Section 494 of IPC subject to the applicability of personal law,” read the plea.
The Muslim Law even though permits male persons to have four wives at the time but at the same time “para 256 (as per Mulla Muhammadan Law) forbids the female to contact another during the lifetime of her husband,” the plea reads. This, the petitioner has stated is a ‘gender bias’ and is discriminatory and against the provisions contained in Article 14 of the Constitution of India.
