Muslim man cannot be punished for bigamy if marriages are under Mohammedan law: Allahabad High Court

The Allahabad High Court has held that the offence of bigamy will not be attracted against a Muslim man for having more than one wife if the marriages were conducted under the Mohammedan law [Furkan and Others v State of UP and Another]..Justice Arun Kumar Singh Deshwal said that the offence would be attracted if the first marriage had been declared void. The Court held the offence will also be attracted if the first marriage was performed under the Special Marriage Act, Foreign Marriage Act, Christian Marriage Act, Parsi Marriage and Divorce Act, or the Hindu Marriage Act, and the man performs a second marriage as per the Mohammedan law, after conversion to Islam.“The Family Court has also jurisdiction u/s 7 of the Family Court Act to decide validity of a Muslim marriage performed in accordance with the Muslim Personal Law,” the Bench held. .The Court observed that religious liberty under Article 25 of the Constitution of India is not unfettered. “This Court would further like to observe that Article 25 of the Constitution of India gives religious freedom to profess, practice and propagate, which also includes external overt acts of individual as per his religious faith, but this right is subject to public order, morality and health and other provisions of Part-III of the Constitution. Therefore, religious liberty under Article 25 is not unfettered and can be regulated by the State.”The Bench stressed that the Quran allows polygamy for a fair reason, but men have used it for selfish purposes. Justice Deshwal said polygamy finds mention in the scripture only once, and there is a historical reason why it was allowed. “There was a time in history when a large number of women were widowed, and children were orphaned in primitive tribal tussles in Arabs. The Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. It was under such circumstances that the Quran allowed conditional polygamy to protect orphans and their mothers from exploitation,” the Bench observed. It said that polygamy in the holy book is conditional. “…it is clear that the Quran asks men first consider taking care of the orphans and only when they think they may not be able to do justice to the orphans’ interests while staying in isolation, should they consider marrying their widowed mothers, on the condition that the new family would be dealt with justly on par with the existing one.” Noting the misuse of the liberty, the Court said that the enactment of uniform civil code must be considered by the legislature. .The Bench rendered these findings while dealing with a plea filed by a man named Furkan seeking quashing of the chargesheet and case registered against him for offences of bigamy and rape, among others. The case was filed after the woman alleged that when she married Furkan, the fact that he is already married was not disclosed to her. However, Furkan argued that the Muslim law allows him to marry four times. After considering the case, the Court held that offence of bigamy and rape are not attracted against the accused because the marriage is valid in this case. It added that the matter requires more consideration. Therefore, it issued notice to the complainant woman and ordered the police to not take any coercive action against Furkan and other accused in the case. .Advocates Alok Kumar Pandey, Prashant Kumar and Susheel Kumar Pandey appeared for applicant Furkan. .[Read Judgement]