Can a Muslim man remarry without the consent of his first wife? Does it amount to bigamy under the Indian Penal Code? A petition to quash a complaint of bigamy against a man from Chhattisgarh led Gujarat high court to discuss whether IPC should prevail over Muslim personal laws.
The questions arose during the hearing of a petition filed by one Zafar Abbas Merchant from Raipur in Chhattisgarh. Merchant's wife Sajedabanu had returned to her parental home in Bhavnagar from Raipur in 2001 following marital discord. Merchant remarried in 2003 without her consent. A year later, Sajedabanu filed a police complaint accusing Merchant of bigamy.
The Bhavnagar police booked him for bigamy, cruelty, wife-beating and also under dowry prohibition laws. The offence of bigamy, section 494 of the IPC, was invoked for not taking consent of his first wife for second marriage.
Merchant moved the high court in 2010, claiming that his second marriage is not bigamous as Muslim personal laws permit a man to marry four times. Against this, Sajedabanu's lawyer argued that provision of personal law — of giving equal justice to all wives — was violated by not obtaining the first wife's consent and ill treating her. Hence, dilution of conditions of personal laws invites offence under IPC, the lawyer said.
The HC appointed an amicus curiae to assist the court. He read out aayat from Sura-e-Niqah justifying more marriages; he also read out passages saying a man is permitted more than one wife but should do justice between them.
The amicus curiae submitted there was no compulsion to get consent from the first wife for a man to marry a second time as per sharia laws as well as country's personal law. When the marriage is not illegal as per personal law, second wedding does not attract IPC provisions, he said.
After all parties referred to plethora of court judgments and literature on religious laws, the HC reserved is order on the subject.
"I am a judge. I am expected to decide on this issue. Don't misunderstand me and this is not to hurt any sentiment. But there is one God, who made rules. Then why are there separate rules for different communities?"Justice J B Pardiwala
AMICUS CURIAE'S REPLY
"God made same rules for entire mankind. Bigamy is there in all religions, and there are examples in all mythologies. But the man-made rules later restricted the practice. Till the enactment of the Hindu Marriage Act in 1955, even Hindus were allowed to practice bigamy".