-Agrah Pandit
The Punjab & Haryana High Court has ruled that a Muslim man may indulge in polygamy (i.e. up to 4 marriages at a time) while a Muslim woman may not. The order came while dismissing the protection plea of a newly married Muslim couple where the man and woman had married each other without having divorced their earlier spouses. The court said that while “a Muslim man may get married more than once without divorcing his earlier wife but the same does not apply to a Muslim lady.”
The bench of Justice Alka Sarin, was hearing the plea of a Muslim couple, who had approached the high court seeking protection to their life and liberty.
The couple in the plea had stated that they are Muslims and adults. The plea said both petitioners have been in love with each other since many years and have performed nikah on January 19, 2021, as per nikahnama.
The court noted: Petitioner No.1 is a Muslim lady and who admittedly was married earlier. No details are forthcoming about when she was married earlier and to whom. Further, there is no averment as to whether she divorced her first husband either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939. There is also no averment that her first marriage stands dissolved and thus her first marriage subsists in the eyes of law. The learned counsel has also not been able to show as to how this Court can provide protection to the petitioners as a couple when petitioner No.1 has not legally divorced her earlier spouse. The petitioner No.1 and 2 have got married without petitioner No.1 obtaining a legally valid divorce from her first husband. A Muslim man may get married more than once without divorcing his earlier wife but the same does not apply to a Muslim lady. A Muslim lady has to divorce her first husband, either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939, before contracting a second marriage. In fact, the alleged marriage itself between petitioner No.1 and petitioner No.2 would be illegal in as much as this marriage has been contracted without the petitioner No.1 being legally divorced.
Justice Alka Sarin, while disposing off their plea, said that their protection plea could not be entertained in the light of the present circumstances:
Article 21 of the Constitution of India provides that no person shall be deprived of his life and liberty except in accordance with law. The petitioners have approached this Court for protection of their life and liberty to live as a couple which cannot be considered in the facts and circumstances of the present case. However, as an individual either of the petitioners, if they apprehend any threat to their life or liberty, would be entitled to approach the Police for [the] redressal of their apprehensions regarding threats to their life and liberty.
It should be pointed out that a Muslim marriage is essentially a civil contract between the two parties, who as long as they are married, are in a contractual obligation. A separate Muslim personal law allows Muslim men to indulge in the polygamy (more properly polygyny) but not the same to Muslim women. The other aspects of law too are loaded heavily in favor of a Muslim man, to the disadvantage of a Muslim woman.
