Polygamy – A Practice Violating Key Fundamental Rights Enshrined In The Constitution Of India
Anubhav Khastagir, Amity University, Kolkata
On 22nd August, 2017 the Supreme Court of India had deemed Triple Talaq to be averse to constitutional morality. Among the arguments that the Supreme Court relied on to invalidate talaq-e-biddat, or instant divorce, was that the practice was considered un-Islamic in even Muslim countries, many of which had abolished or reformed it. Henceforth, a petition challenging the practices of polygamy and nikah halala prevalent in Muslim community will be heard by Supreme Court in the near future. The Court has recently said it would examine the constitutional validity of polygamy, which Muslim Personal Law in India recognises.
The concept of polygamy has staged heated debates in public, political and academic arena as it is evidenced by the number of articles, journals and books written on this institution of marriage. The current Indian law poses a constitutional paradox because subjecting Muslim women to polygamy under the Freedom of Religion provisions whilst prohibiting it among all other religions violates the equal protection provisions of the Indian Constitution. The author introspects this standpoint and argues that though the social and political reasoning for non-penalisation of polygamy during the time of its advent was justified under the Muslim Personal Law, the same practice has no relevance and is averse to the Constitutional ideology in context of the present society.
This paper examines the relevant constitutional provisions that are said to pose a constitutional paradox often by permitting polygamy only among Muslim men in India. And thereby highlight the practice as to being in violation of Articles 13, 14, 15 and 21 of the Constitution of India. The author then moves on to argue that polygamy is not immune under Article 25 and such practice does not hold a place in tune with progressive thinking modern democratic principles.
Keywords: polygamy, constitution, fundamental rights, practice, constitutional scrutiny