The Delhi High Court on Monday directed the Centre to file its reply on a plea limiting the scope of polygamy to the extent that a Muslim man must take prior permission from his wife/wives before marrying again.
The plea also sought directions from the Centre to frame laws regulating bigamy and polygamy by Muslim men under the Shariah—the body of religious laws that forms part of Islamic tradition and a declaration that Muslim men will maintain their wives equally in a case of polygamy.
The division bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla directed the Centre to file their affidavits within six weeks and posted the case for further hearing on August 23.
The PIL was filed by 28-year-old Reshma Khan who alleged that her husband Mohammed Shoeb Khan deserted her and their 11-month-old child in 2021—her three years after their marriage in 2019. Khan said her husband left her after declaring instant Triple Talaq and now fears that he is planning to marry again.
Quran permits polygamy but does not encourage the same: Plea in HC
The Quran permits a Muslim man to marry a maximum of four times but does not encourage such behaviour.
The plea said bigamy or polygamy by a Muslim husband without obtaining prior written consent of his wife (wives) and without making prior proper arrangements of accommodation, maintenance of his wife (wives) is unconstitutional, anti-Sharia, illegal, arbitrary, harsh, inhuman, barbaric and this practice needs to be regulated by law to curb the plight of Muslim women.
In her PIL, Reshma Khan argued that even in countries governed by Shariah, a Muslim man is permitted to marry a second time only under special circumstances such as if the first wife is ill, unable to bear children, or if a husband's death has left his widow with no other means of support.
"In these cases, with the first wife's consent, a man may marry again and this is referred to as Polygamy, a subset of polygamous marriages," the plea read.
The PIL said, in the event a Muslim man wished to marry again, he must do so with prior consent of his first wife and make prior arrangements for accommodation, and maintenance. Doing so otherwise would be unconstitutional, anti-Sharia, illegal, arbitrary, harsh, inhuman, barbaric, and discriminatory.
SC Constitution Bench to decide on the validity of polygamy
In March 2018, the Supreme Court agreed to hear a batch of pleas seeking to criminalise nikah halala and polygamy. More significantly, the matter was referred for adjudication before a five-judge constitution bench. One of the pleas has been filed by BJP leader advocate Ashwini Upadhyay who has also filed petitions seeking the implementation of the Uniform Civil Code and uniformity in marriage laws.
The issue of polygamy and nikah halala is a spillover from the plea seeking to criminalise instant triple talaq. In its 2017 verdict, a five-judge constitution bench of the Supreme Court had criminalized instant triple talaq but had not dealt with the issue of nikah halala and polygamy.
In 2016, during the hearing in the Shayara Bano plea (banning instant triple talaq) the Centre had taken a firm view and said that the issues pertaining to the validity of triple talaq, nikah halala, and polygamy needed to be "considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity, and equality".
Also Read: Explained: What is the Uniform Civil Code?