Plea In Apex Court Challenges Section 494 IPC, Section 2 Of Shariah Application Act, 1937 Which Recognizes The System Of Bigamy In Muslim Community.
(Judicial Quest News Network)
A PIL has been filed in Apex Court stating that the practice of Bigamy cannot be allowed for one religious community alone while irt is prohibited for persons from other religions, seeking a declaration that the practice is unconstitutional, oppressive towards women and opposed to equality.
It is submitted that Inequality in the family underlies all other aspect and is often justified in the name of ideology, tradition and culture. An examination of the reports of States parties reveals that in many States, the rights and responsibilities of married partners are governed by the principles of civil or common law, religious or customary laws and practices, or some combination of such laws and practices that discriminate against women and do not comply with the principles set out in the Convention.
The petition filed by five individuals through Advocate Vishnu Shanker Jain has also prayed that Section 494 of Indian Penal code (IPC) and Section 2 of Muslim Personal law (Shariah) Application Act, 1937 both of which enable Muslim men to take more than one wife be declared unconstitutional.
It is stated that a second marriage solemnized by a Hindu, Christian or Parsi during the life time of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if conducted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is perse in violation of Article 14 and 15(1) of the Constitution of India.
On the other hand, Section 494 of IPC provides that ‘whoever’ having a husband or wife living, marries in any case in which such marriages is void by reason of it of it taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine’, therefore it was submitted that the practice adopted by a religious group cannot be a basis to exclude such person from purview of penal action which is otherwise punishable for others. In the present case the situation is that Muslims are excluded from the penal law related to bigamy whereas other citizens are liable to be punished for the same act.
The petition has been filed under Article 32 of the Constitution of India to declare that bigamy in so far it has been applicable in India by Section 2 Act of Muslim Personal Law (Shariat) Application Act, 1937 is ultra vires to Article 14 of the Constitution of India and by Virtue of Article 13(1) of the Constitution same has become void and non-est.
It was further asserted that the main aim of the plea Is that The State cannot make criminal law creating discrimination on the basis of religion. No law can permit an act punishable for a section of the society and same act cannot be enjoyable for others.
From the aforesaid provision it is clear that the offence of bigamy is punishable only when the second marriage is void. It means that the validity of second marriage depends on the recognition of such marriage under personal law.
The plea relies on the 1996 Judgement of the Supreme Court in C Masilamani Mudaliar & ORS.VS. Idol of SriSwaminathswami Thirukoli wherein it was held that women have right to elimination of gender-based discrimination and they have right to equality of status and opportunity which also forms part of the Basic Structure of the Constitution.
The petitioners have argued that Section 494 discriminates “only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”
The plea further seeks declaration that the system of bigamous marriage is irrational, illogical, discriminatory and oppressive for women and ultra Vires Article 14 and 15 (1) of the Constitution of India.
A constitution Bench of Supreme Court in 2017, struck down the practice of instant triple talaq among Muslims as unconstitutional.
