– Arshad Shaikh
The Bombay High Court recently passed a sensational judgment while hearing a plea to quash an FIR against an academician who had married for the second time even as his first marriage was still valid or in subsistence. On August 24, Justices Nitin Sambre and Rajesh Patil of the Bombay High Court, refused to accept the request made by the accused person to cancel the FIR against him. The judges ruled that if someone gets married again while his first marriage is still legally valid (in subsistence), then it attracts the crime of both bigamy (which means having two spouses at the same time) and rape. Hence, because of a complaint filed against him, the accused will face charges of rape (sections 376) and bigamy (Section 494) under the Indian law.
Second Marriage Without Divorcing the First
According to the complaint filed by the second wife, the man (an academician from Pune) married her in June 2014 after her first husband had died in February 2006. She said the man lied to her and said he had divorced his first wife, and they had a sexual relationship.
The learned judges concluded after the trial that the man knowingly married a second time while his first marriage was still valid, and he made false promises to the plaintiff, which is why they said it was rape under Section 376 of the Penal Code.
On the other hand, the lawyer defending the accused argued that the complainant (second wife) knew about the ongoing divorce process with the man’s first wife. The defence said that since the man did not hide his second marriage, there was no violation of Section 376, and the relationship was consensual. However, the court said that the Hindu Law does not allow a physical relationship through a second marriage while the first marriage is still legally binding.
Different Interpretation of Section 376
While the Bombay High Court judgment appears to be bewildering, as a perfectly legal second marriage was held invalid and amounting to rape, just because the first marriage was still legally valid, the interpretation of Section 376 (dealing with punishment for Rape) has not been uniform as can be seen in different judgments.
For example, in the Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others (supra), a bench of Justices A.K. Sikri, and S. Abdul Nazeer of the Supreme Court of India ruled – “There is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception.
“There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.
“There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do.
“Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.”
The Islamic Position
Speaking to Radiance, Maulana Raziul Islam Nadvi, Secretary Shariah Council of India, said, “Islam permits a man to have a maximum of four wives simultaneously. The second marriage can be contracted without the knowledge of the first wife. It is not mandatory for the husband to inform the first wife that he is planning to have a second wife. It is against the possessive nature of a woman to permit the husband to go for another marriage. The husband may contract another marriage because of some reason and non-disclosure of the second marriage to the first wife does not invalidate the new marriage.”
Explaining further, Maulana Raziul Islam said, “The financial burden of the first and second wife is to be borne by the husband. The Qur’ān (Chapter 4 Verse 3) lays down a condition on polygyny by saying, “But if you fear that you will not be just, then [marry only] one.” The requirement for being just with both wives is quite stringent. The husband has to devote equal time, resources, attention, giving the conjugal rights, financial support, etc. to both his wives, which is quite a challenge.
The Indian Muslim Position
The spokesperson of the All India Muslim Personal Law Board (AIMPLB), Dr. S.Q.R. Ilyas, earlier told Radiance in the context of a petition in the Supreme Court of India challenging the constitutional validity of polygyny, “An earlier bench (of the apex court) in its judgment on triple talaq had set aside polygyny, nikah-halala and all other issues pertaining to personal laws. The Court had also said that other than triple talaq, in all issues, Muslims have the safeguards and cannot be questioned. Muslims are free to practise their personal laws. Our Constitution gives us full freedom to practise our religion and under that law, the freedom to practise personal laws is available. The Muslims of India will not tolerate any kind of interference in its personal laws and the Board will challenge this.”
The Bombay High Court judgment on the bigamous marriage does not apply to Muslims. The judgment itself is bound to be challenged in the Supreme Court. There are different perspectives in the various judgments on the issue of bigamy among Hindus. Indian Muslims need to be alert and protect their constitutionally guaranteed right to practise polygyny.