In August 2017, soon after the Supreme Court struck down the validity of triple talaq, Gausiya Ahmed’s husband married a second wife. Gausiya’s elation about the Court’s verdict suddenly evaporated. In 2015, her husband had given her triple talaq – a form of unilateral, instantaneous divorce practiced by a section of Muslims. Now that her divorce was finally deemed invalid, she had become a victim of polygamy.
“This is just wrong. Men should not be allowed to do just anything they want,” said 29-year-old Gausiya, a Unani doctor from Bhiwandi, a town north of Mumbai. “Such second marriages are against Sharia and if polygamy was made illegal, I would file a case against my husband.”
Gausiya has now once again pinned her hopes on the Supreme Court, which on Monday began hearing a new set of petitions against the practices of polygamy and nikah halala. The four petitions have been filed by Ashwini Upadhyay, a Bharatiya Janata Party leader in Delhi; Mohsin Kathiri, a lawyer from Hyderabad; and two women who were subjected to polygamy, Sameena Begum and Nafisa Khan.
Under the Sharia and Muslim personal law, Muslim men are allowed to marry up to four wives at a time as long as they have the consent of all the wives involved. The practice of nikah halala, meanwhile, mandates that if a man wants to remarry a wife he has divorced, she must first marry another man, consummate that marriage, divorce him and only then remarry the first husband. The petitioners have contended that these practices violate their constitutional rights to life and equality, and amount to discrimination on the grounds of religion.
Petitioner Mohsin Kathiri has also challenged the constitutional validity of nikah mutah (“pleasure marriage”) and nikah misyar (“traveller’s marriage”), two forms of temporary contractual marriages that have been criticised for serving as covers for prostitution.
On Monday, the Supreme Court noted that these practices had not really been looked into when it was hearing the triple talaq case last year. It issued notices to the Central government and the Law Commission asking for their position on the matter.
While women like Gausiya Ahmed are keen to see these practices outlawed, many of the women’s organisations that had been at the forefront of demanding a ban on triple talaq are now apprehensive about the politics behind the petitions against polygamy and nikah halala. The bigger concern, they believe, is that laws meant to protect women are not effectively implemented after they are passed.
Polygamy and discrimination
In December 2017, the BJP-led central government introduced the Muslim Women (Protection of Rights on Marriage) Bill, a proposed law that would make triple talaq a criminal offence even though the Supreme Court had already made the practice invalid. Women’s groups and Muslim organisations have condemned this bill for focusing solely on punishment for the husband, while failing to ensure that wives’ needs are looked after.
“Now this case against polygamy has been initiated by a BJP leader,” said Sandhya Gokhale, a member of the non-profit collective Forum Against Oppression of Women. “The BJP is raking up issues one by one to show that they are the ones protecting Muslim women. If this party cares so much about Muslim women, why has no action been taken in the many cases of sexual crimes committed on Muslim women during the Muzaffarnagar riots [in Uttar Pradesh in 2013]?”
Hasina Khan, founder of the human rights organisations Bebaak Collective, believes that while the issues of polygamy and nikah halala are extremely important to raise, it is the political motivations behind outlawing them that are the problem. “The government never talks about issues with Hindu personal law and its implementation,” said Khan.
One of the issues with the implementation of the Hindu Code Bill that governs personal laws in the majority community, is that polygamy continues to thrive among Hindus despite being illegal. In fact, government surveys from 1961 and 1974 had found that bigamy was more prevalent among Hindus than among Muslims. More recent research has found no evidence that Muslims are more likely to have polygamous relationships than Hindus.
In Tamil Nadu and parts of Andhra Pradesh, Hindu men having two wives – with the second wife kept in a separate “small house” – has been widely accepted in the culture. Despite the law, former Tamil Nadu chief minister M Karunanidhi and several other political and film personalities in the state have been open about their bigamous relationships. Meanwhile, an ancient section of the Goa Family Law, framed in 1880 but not yet explicitly repealed, allows Hindu men to marry a second wife if the first fails to produce children – particularly male children.
‘Laws have their own place’
According to feminist lawyer Flavia Agnes, the laws have failed to be implemented because the government has no inclination to raise awareness about them on the ground or give women any help to access the legal system. “We are happy to pass laws after laws and no one bothers about these problems as long as their campaign to get a law passed is successful,” said Agnes, founder of non-profit Majlis Legal Centre in Mumbai.
In the absence of proper implementation of the law, Agnes points out that Hindu women in polygamous situations are often at a disadvantage compared to Muslim women. “Under Muslim personal law, all the wives a man marries have equal rights and recognition,” she said. “Under Hindu law, only the first wife is considered the legal wife, so the second wife cannot even claim rights to maintenance.”
Gokhale, however, points out that any woman who has been put through polygamy, irrespective of community, can seek recourse in the Protection of Women from Domestic Violence Act, commonly known as the Domestic Violence or DV Act.
“The DV Act is a secular law and if it functions properly, it would applicable to women in the case of polygamy, nikah halala, triple talaq or any problem,” said Gokhale. “But that is only if it is functioning properly, which is not the case. Complaints under the DV Act are supposed to be heard and resolved within 90 days, but cases often drag on for years. We need state and judiciary intervention to strengthen the implementation of this law.”
Noorjehan Safia Niaz, founder of the Muslim women’s organisation Bharatiya Muslim Mahila Andolan, believes that challenges in implementing laws for women are not a reason to back away from demanding new laws. “Implementation of law is a universal problem, not just confined to Muslim personal laws,” said Niaz. “But laws have their own place. They are ideals to be looked up to and followed, and serve as deterrents. Certain practices have to be turned into an offence.”
The Supreme Court’s eventual verdict on the practices of polygamy and nikah halala may not lead to a law criminalising them. But for now, Gausiya Ahmed is seeking solace in the prospect that polygamy may one day be illegal. “In my town there are many cases of polygamy, all done without the consent of the first wives. One local man married six wives at the same time,” said Gausiya. “It’s a good thing this case has gone to court.”
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