Why polygamy is not a crime for Muslim male

Why polygamy is not a crime for Muslim male

LEGAL AND CULTURAL CONTEXT

==== Although polygamy being a prohibited practice as per the Indian laws but also the exception to this ban as Muslim personal laws allows the practice of polygamy. Muslim marriage laws differ vastly from the marriage laws of other religions. Marriage in Islam, or Nikah, is not a sacrament (as in Hinduism), but a civil contract between a man and woman to live as husband and wife.

From a religious perspective, the Muslim marriage act in the Indian constitution is also a devotional act, i.e., ibadat. The Prophet is reported to have said that marriage is obligatory (wajib) for every physically fit Muslim, that marriage is equal to jihad (holy war) and that he who marries completes half his religion, while the other half is completed by leading a virtuous life. Other schools of thought prescribe that the man must also have the means to earn a lawful livelihood, to pay Mahr and to support his wife and children. ====

1. Islam's principles and laws are derived from divine revelation (wahy) rather than purely human reasoning. Reason is employed to interpret and apply these laws, not to supersede or judge them.
2. The majority of Prophets in Islamic tradition practiced polygamy, setting a precedent that is considered exemplary for adherents. Their lives serve as models for various aspects of human conduct.
3. Contrasting with prevalent practices in non-Muslim societies, where a significant percentage of married individuals engage in extramarital relationships, Islam permits polygamy as a means to prevent such behaviors (zina), thereby promoting chastity and purity within society.
4. The laws regarding polygamy in Islam are seen as divinely ordained and designed to address human needs and societal issues, guided by the Creator's knowledge of what is beneficial and detrimental to both men and women.

POLYGAMY AROUND THE WORLD

The legal status of polygamy varies globally, with countries either outlawing, accepting, or tolerating it under specific conditions. In North and South America, including all 50 U.S. states, polygamy is uniformly illegal and criminalized. Notably, Utah recently reduced the severity of penalties for consensual polygamy to a lesser offense akin to a traffic violation. In Europe and Oceania, with the exception of the Solomon Islands, polygamous marriages are not recognized. However, de facto polygamous relationships occur among some indigenous Australian communities despite legal prohibitions. In Asia, countries like India, Malaysia, the Philippines, and Singapore recognize polygamous marriages for Muslims but not for others. Indonesia permits polygamy in select regions under local customs, such as in Bali and Papua. In parts of Africa, polygamy is prohibited under civil law but permitted under customary law, creating a legal distinction between civil and customary marriages in countries like Liberia, Malawi, and Sierra Leone. Additionally, certain Muslim-majority nations recognize polygamous marriages contingent upon the informed consent of the first wife before subsequent marriages are contracted. Moreover, some countries that prohibit polygamy may recognize marriages conducted abroad under specific conditions, illustrating the varied legal approaches to polygamy across different jurisdictions globally.

CONTEMPORARY DEBATE AND REFORMS

In the case of Lily Thomas v. Union of India, the court reiterated its stance aimed at preventing the misuse of religious freedom to evade laws against polygamy. The court emphasized the necessity for legally dissolving the first marriage before converting and remarrying, reflecting a commitment to legal clarity and social order.

However, this approach introduces significant social and legal complexities. It adversely affects the rights of second wives and their children, making it challenging for them to claim maintenance and inheritance rights. Such conversions for remarriage also create legal uncertainties and can lead to social and familial discord.

In March 2023, a bench comprising Chief Justice DY Chandrachud, Justices PS Narasimha, and JB Pardiwala was petitioned by Ashwini Upadhyay to consider the constitutionality of polygamy and nikah halala. The Chief Justice responded that he would review the request and potentially convene a Constitution bench at an appropriate time. This judicial decision to reassess the validity of polygamy aligns with broader efforts to promote gender equality and safeguard women's rights.

Polygamy has been subjected to feminist critique due to its implications for perpetuating gender inequality and women's subjugation. Scholars argue that polygamy reinforces patriarchal power dynamics, exacerbating unequal treatment within marriages and families. The practice allows men multiple wives while restricting women to one husband, thereby creating power imbalances and unequal resource distribution. Societal norms further burden women with disproportionate family responsibilities, even if they pursue work outside the home.

Research, such as that from Emory University, highlights increased levels of violence within polygamous relationships, affecting women and children alike, often stemming from both husbands and co-wives. In the context of India's diverse religious and cultural landscape, promoting practices aligned with principles of equality and justice is crucial. Polygamy, especially when linked to religious conversion for subsequent marriages, poses significant challenges.

Moreover, economic dependency on husbands leaves multiple wives vulnerable to exploitation, limiting their autonomy within marriages and perpetuating gender disparities. Feminist scholars argue that polygamy reinforces women's inequality and contributes to their disempowerment in sexual relationships, reflecting a culture of misogyny and male privilege.

Despite its practice in certain communities, polygamy is not prevalent in India, as indicated by the National Family Health Survey-5. Low prevalence rates suggest evolving social attitudes that may support banning the practice in line with societal norms.

Drawing from philosophical perspectives like those of John Stuart Mill and Simone de Beauvoir, the discourse on individual liberty and equality underscores the problematic aspects of polygamy. Mill argued for individual freedoms within limits that prevent harm to others, a principle applicable to polygamy given its inherent risks of generating harm through power imbalances and gender inequity. Beauvoir's feminist philosophy advocates liberating women from oppressive structures, unequivocally opposing systems like polygamy that curtail women's agency.

The economic, psychological, and social implications of polygamy further highlight these disparities, creating an unjust environment for women. Contemporary scholarship, societal trends moving away from polygamy, and potential negative impacts reinforce the need for a ban. As society strives for equity, it is imperative to reevaluate practices hindering progress and undermining equal rights. Outlawing polygamy not only advances the pursuit of equality and justice but also aligns with philosophical tenets of freedom, fairness, and respect for all individuals.

CONCLUSION

In conclusion, the discourse surrounding polygamy in India and globally reveals a complex intersection of religious traditions, legal frameworks, and societal norms. While Indian law prohibits polygamy for most citizens, it accommodates exceptions under Muslim personal law, reflecting the diversity of marital practices within the country. This legal duality has sparked debates centered on gender equality, human rights, and social justice.

The recent judicial reexamination of polygamy's validity underscores a progressive stance aimed at addressing these debates through the lens of constitutional principles. The judiciary's commitment to safeguarding women's rights and promoting gender equality is evident in its scrutiny of practices that may perpetuate gender disparities and social inequalities.

Furthermore, insights from feminist scholarship and empirical research highlight the adverse effects of polygamy on women, including economic dependency, diminished autonomy, and increased vulnerability to violence. Such findings underscore the urgency of legislative and judicial reforms that uphold principles of individual liberty, equality, and dignity for all.

As India navigates these complexities, societal attitudes continue to evolve, indicating a growing consensus towards restricting polygamous practices. This societal shift aligns with global trends where many nations have either outlawed or strictly regulated polygamy to uphold modern notions of justice and equality.

Ultimately, by critically evaluating the cultural, legal, and ethical dimensions of polygamy, India can strive towards a more equitable society where all individuals, irrespective of gender or religious affiliation, enjoy equal rights and opportunities within the institution of marriage.