Upananda Brahmachari | HENB | Ahmedabad | Nov 6, 2015:: In its extraordinary judgement, the Gujarat high court on Thursday made a strong pitch for a uniform civil code and called for the abolition of polygamy in Muslim society in India as it’s a “heinously patriarchal” act. The court said the Quran was being “misinterpreted by some Muslim men” to get away with more than one marriage.
The court recommended an amendment of Muslim personal law saying that in this day and age, the practice of polygamy is often driven by selfish motives.
“On the basis of modern progressive thinking, India must shun the practice (of polygamy) and establish a uniform civil code,” said Justice JB Pardiwala, while adjudicating on a petition by a Muslim man who faced bigamy charges after marrying for a second time without his first wife’s consent.
A man was charged under section 494 of the IPC, for bigamy, but his second marriage is valid as per Muslim Personal Law, so he could not be prosecuted for bigamy.
“When the Quran allowed polygamy, it was for a fair reason. When men use that provision today, they do it for a selfish reason,” said Justice JB Pardiwala in his order on the petition of Jafar Abbas Merchant, who had been taken to court by his wife Sajida after he married another woman.
Sajida Merchant had alleged that the marriage is illegal per Indian law, which bans polygamy. After a lower court ruled in her favour, Mr Merchant went to the high court and argued that the Muslim personal law allows men to marry four times.
The high court disagreed, saying polygamy finds mention in the Quran only once, “and it is about conditional polygamy.”
“Some Muslim men are able to get away with by misinterpreting and using to their advantage the message of the holy prophet Mohammed, which is reflected in the holy Quran. The Quran does not say that a Muslim can treat his wife cruelly, drive her out and without dissolution the first marriage in accordance with law, he can marry for the second time and up to four times,” said the judge.
He also said that it was time for the country to embrace the uniform civil code, but left it to the government to decide, saying: “On the basis of modern, progressive thinking, India must shun the practice and establish uniform civil code.”
Justice Pardiwala had to quash the bigamy charges but while doing so, he said the practice of polygamy and unilateral talaq — without the wife’s consent — violates the provisions of the Constitution. He quoted Article 44 of Part IV of the Constitution, which mandates that the state must “endeavour to secure for the citizens a uniform civil code throughout the territory.”
“If the state tolerates this law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws,” the judge said.
The Quran forbids polygamy if the purpose to marry more than once is self-interest or sexual desire, Justice Pardiwala said. “… It’s for the maulvis and Muslim men to ensure that they do not abuse the Quran to justify the heinously patriarchal act of polygamy in self-interest,” the judge advised.
Citing history, Justice Pardiwala said that when the Quran allowed polygamy, it was for a fair reason. “The Quran allowed conditional polygamy to protect orphans and their mothers from an exploitative society… When men use that provision today, they do it for a selfish reason.” Thanks God! The court refrained to say that the Islamic polygamy is only for ‘Sexual Debauchery’ and ‘Population Jihad’.
The court praised and said that abolition of polygamy in Hindu society was a progressive step and added that it could not be replicated for Muslims due to their ‘social backwardness then’. But now, in the context of a much-changed socio-economic scenario, ‘polygamy is going into oblivion’ and ‘monogamy is becoming the reality’, the court observed.
__with inputs from PTI.