Report No. 227
Chapter V
Bigamy under Muslim Personal Law
Traditional Law
It is generally believed that under Muslim law a husband has an unfettered right to marry again even where his earlier marriage is subsisting. On a closer examination of the relevant provisions of the Qur'an and the other sources of Islamic law, this does not seem to be the truth. The rule of Muslim law conditionally permitting bigamy in fact visualized two or more women happily living with a common husband - taking a second wife after forsaking or deserting the first was not Islam's concept of bigamy.
Bigamy with no restrictions or discipline whatsoever was rampant in the society where Islam made its first appearance and also in many other societies across the globe. The Holy Qur'an put restrictions on it, allowing it within limits, and even within those limits subjecting it to a strict discipline. The Qur'an permitted polygamy subject to a strict condition that the man must be capable of ensuring equal treatment of two wives in every respect.
Asserting that this may not be possible even with the best of intentions, the Holy Book at the same time advised men to keep to monogamy as "this would keep you away from injustice" (Qur'an, IV: 3 & 129). To this Qur'anic reform the Prophet added a highly deterrent warning: "A bigamist unable to treat his wives equally will be torn apart on the Day of Judgment." This was the reform that the Islamic religious law could, and did, introduce in the 7th century AD.
If bigamy means forsaking of the first wife without divorcing her and bringing in a new wife, the Qur'an certainly does not permit it. In Muslim law bigamy envisages two women happily married to the same man actually living with him and getting from him equally all that a wife can expect from her husband. Where this is not possible, the Qur'an enjoins the husband to remain a monogamist. Bigamy of the type now prevalent in India in which the first wife is wholly forsaken and thereby tortured and a second wife is allowed to usurp her place in the husband's home is not approved anywhere in Islamic legal texts.
The Muslim law -- as now traditionally understood, interpreted and applied in India -- is however believed to permit four marriages during the subsistence of one another. Though the capacity to do justice between cowives is in law a condition precedent for bigamy, whether a man has such capacity or not is, for inexplicable reasons, not justiciable before he actually contracts a bigamous marriage. The Dissolution of Muslim Marriages Act 1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife; but there is no law under which a man's right and capacity to contract a second marriage can be examined by anybody before he enters upon such a course of action.
Rules of Muslim law empower women to restrict the freedom of their would-be husbands to indulge in bigamy by entering a condition to that effect in their marriage contract. And since Muslim law allows out-of-court divorce at the instance of both men and women, it further provides that a woman who after availing the legally provided facility to get rid of her husband marries again, will not face the charge of bigamy. These pro- 29women provisions of Muslim law have been judicially recognized in India in several cases.
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