Judge recommends uniform civil code
GN Bureau | November 6, 2015
Asking Muslims not to misuse certain religious and temporal practices, the Gujarat high court on Thursday said the Quran was being misinterpreted by Muslim men to have more than one wife. The high court said that time has come for the country to embrace the uniform civil code.
While delivering a judgement, the court said the provision of polygamy was being misused by the Muslim men for “selfish reasons”.
Justice JB Pardiwala made these observations while pronouncing the order related to section 494 of IPC, which deals with punishment for having more than one wife.
In the order, Pardiwala noted “the Quran is being misinterpreted by Muslim men to have more than one wife.”
“When the Quran allowed polygamy, it was for a fair reason. When men use that provision today, they do it for a selfish reason. Polygamy finds mention in the Quran only once, and it is about conditional polygamy,” the order said.
“Muslim Personal Law does not permit a Muslim to treat one wife cruelly, drive her out of the matrimonial home and then get married for the second time. However, there is no law in this country which takes care of this situation. There is no uniform civil code in this country,” it said.
The petitioner, Jafar Abbas Merchant, had approached the high court to quash an FIR against him filed by his wife who alleged that he got married to another woman without her consent. In the FIR, she invoked section 494 of IPC (marrying again during lifetime of husband or wife) against Jafar.
In his plea, Jafar, however, claimed that the Muslim Personal Law allows Muslim men to marry four times and hence the FIR against him does not stand legal scrutiny.
“On the basis of modern, progressive thinking, India must shun the practice and establish uniform civil code,” stated the judgment.
The court further observed that the permission to have four wives under Muslim Personal Law violates Constitutional provisions.
“Polygamy and the unilateral talaq without the wife’s consent offends Article 14 (equality before law for all) and Article 15 (the state’s non-discrimination on grounds of caste, religion, sex, etc). If the state tolerates this law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws,” the court in its order.
While mentioning several verses of the Quran as well as statements of noted scholars, the HC said “it is abundantly clear that notwithstanding there is no codification by the legislation of marriages amongst the Muslims, polygamy is not encouraged and is an exception and not a rule. It is not the fundamental right of a Muslim to have four wives.”
The court also gave a verdict in favour of Jafar and removed section 494 from the FIR, as being a Muslim, he is governed by the Muslim Personal Law, which allows him to have more than one wife, and not under the IPC.
“In view of the above, so far as the offfence punishable under Section 494 of IPC is concerned, I am left with no other option but to accept the submission that Jafar cannot be prosecuted for the offence punishable under Section 494 of IPC. To this extent, the petition will have to be allowed and is, accordingly, allowed,” stated the order.
During the arguments, advocate MTM Hakim, who was appointed as amicus curiae in the case, had pointed out that under Muslim laws, the second marriage cannot be held void.
The court, however, observed, “…notwithstanding there is no codification by the legislation of marriages amongst the Muslim, polygamy is not encouraged and is an exception and not a rule.”
Justice Pardiwala further said the offence under Section 498A of the IPC is a continuing offence, “and if the act of cruelty continues, even while the woman is living at her parents’ house, the offence is triable by both the Courts in whose territorial jurisdiction the acts of cruelty have been committed.”
The court said: “Sajeda was subjected to cruelty at her matrimonial house … (and) forced to live with her parents and brother at Bhavnagar. Sajeda had been left with no other option… and in any case, if she was asked to prosecute her case under Section 498A of the IPC at her matrimonial home, it would amount to deprivation of her right to prosecute the case, since, as a deserted lady, she would not be able to prosecute her case properly there.”
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