SC seeks Centre’s response on plea to declare polygamy among Muslims as unconstitutional

The Supreme Court on Friday sought the Centre’s response on a plea to declare the practice of polygamy among Muslims as unconstitutional for being violative of constitutional provisions.

A bench of Chief Justice Surya Kant and Justices Joaymalya Bagchi and V Mohana issued notice to the Centre on a petition filed by women’s rights activists Zakia Soman and Noorjehan Safia Niaz and others. The bench tagged the plea with pending matters.

The plea sought direction for applying Section 82 of the Bharatiya Nyaya Sanhita (BNS), which punishes bigamy uniformly and by removing any exemptions under the Muslim Personal Law. It sought directions to the Centre to take legislative steps to abolish the practice of polygamy and ensure it is treated as void ab initio (invalid from the outset) for all citizens regardless of religion. Besides seeking several other directions for the legal rights and protection of Muslim women, the plea also sought directions for the compulsory registration of all Muslim marriages and divorces with the State authorities to prevent secret subsequent marriages.

The petition also seeks an immediate right to the matrimonial home for the first wife and children and a fast-track mechanism for maintenance in cases involving polygamous marriages.

“The present writ petition is filed under Article 32 of the Constitution of India in the public interest to protect the fundamental rights of Muslim women,” it said.

The plea filed through advocate Shriya Maini challenged the constitutional validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as it recognises and validates the practice of polygamy, creating a legal vacuum where Muslim women are denied the protection against bigamy available to all other citizens under Section 82 of the BNS.

It said the petitioners contend that polygamy is inherently discriminatory and violative of Articles 14, 15 and 21 of the Constitution.

“While bigamy is a criminal offence for other Indian citizens under Section 82 of the BNS, Muslim men are granted a religious shield for the same act, creating a legal asymmetry.

“The practice grants men a religious shield to commit acts that are criminalised for all other communities, failing the test of intelligible differentia. Polygamy inflicts irreparable psychological and physical trauma on women and children, infringing upon the right to a life of dignity under Article 21.

“The petitioners argue that under Article 25, religious freedom is subject to constitutional morality, which prioritises gender justice over patriarchal customs,” the plea said.

It further said the polygamy practice is a primary driver of female destitution and is often used to bypass the legal safeguards established after the abolition of instant Triple Talaq and empirical evidence reveals that the practice leads to severe emotional trauma, economic destitution and abandonment.

It said the practice of polygamy in India, as such validated by Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, inflicts profound and inherent harms upon women and children, encourages ill-founded religious conversion and enters the domain of public health and social morality.

The petitioners said they, therefore, argued with “utmost respect” that the “harm-based approach” can be directly applied to the principle that Article 25 of the Constitution only protects essential religious practices and remains subject to public order, morality and health.

“The petitioners further argue that polygamy is not an essential religious practice of Islam but a permissive one subject to ‘absolute justice’ of a standard the Quran itself describes as humanly impossible,” it said.

The petitioners highlighted that numerous Muslim-majority nations like Tunisia and Turkey have already abolished the practice and sought a declaration of unconstitutionality and a direction for the uniform application of bigamy laws to all citizens to ensure gender justice and dignity.

“The Directive Principles of State Policy, more specifically Article 44 of the Constitution, envisages a Uniform Civil Code (UCC) for harmonisation of all civil laws in the country. The practice of polygamy starkly undermines this…,” the plea said.