Chandra Pal and Others vs Keshav Deo and Others

Ravi S. Dhavan, J.—Misunderstanding another man''s religion can lead to disastrous results. Religions are not meant to be played around with for personal gain. Such is case in the present writ petition before this Court.

The Petitioner, Chandrapal, is a Hindu. His father-in-law instituted a complaint before the Chief Judicial Magistrate, Mathura that the Petitioner be prosecuted u/s 494 and 109 of the Indian Penal Code.

The complaint against the Petitioner was that he was a bigamous spouse. Thus, proceedings for prosecution of the Petitioner were set in motion in Criminal Case No. 2990 of 1987 : Keshav Dev v. Chandrapal. Keshav Dev is the father-in-law. Chandrapal is the Petitioner facing prosecution on the charge of bigamy.

The Chief Judical Magistrate summoned the Petitioner and his father as an accomplice. The Petitioner and his father have run to this Court by a petition under Articles 226 and 227 of the Constitution of India. The contention of the Petitioner before this Court is, in effect, that Section 17 of the Hindu Marriage Act, 1955 is ultravires of the equality clause under the Constitution of India and his prosecution u/s 494 of the Code offends his life and liberty under Article 21. The Petitioner contends that a restraint upon a Hindu to have only one wife should be set at naught and for this purpose draws an analogy that if he were a muslim he would get away with it and cannot be prosecuted u/s 494 of the Code. Consequently, the Petitioner contends that even Section 494 of the Penal Code is ultravires.

The Petitioner has also made some insidious expressions in the writ petition, which are otherwise vexatious, whatever they may be worth. The submissions are in paragraph 13 of the writ petition to the effect that after a lapse of 41 years the Muslims have increased their population and they have enjoined more privileges. This Court cannot permit such expressions of irresponsibility to remain on record. Even otherwise they have no bearing or relevance with the case and are being deleted from the record.

The grievance of the Petitioner is contained in paragraph 11 of the writ petition. It reads:

That by virtue of Section 17 (sic) Hindu Marriage Act/Hindus are denied to marry more than once at the pain (sic) of punishment u/s 494 IPC

Then the Petitioner contends in paragraph 12:

That uniform service Rule have been framed by the State as well by center (sic) wherein bigamy is prohibited to both the sects. It is strange that now Section 494 IPC is applicable only to Hindus.

There needs to be a limit to expressions of male chauvinism. The impression which the Court gets is that given a chance the Petitioner would like to have another wife. Further, merely because a son may not be born, the Petitioner considers it his right to procreate through another woman and insists that it is legitimate. Throughout the arguments the contention on behalf of the Petitioner was that under the Constitution the Petitioner cannot be denied a right to bigamy, a right which, otherwise, every Muslim has. All these pleas are being made because the Petitioner faces prosecution on a complaint by his father-in-law that he has married the second time.

The Petitioner justifies his second marriage by ignoring the morality of the Hindu religion, but is quick to grab the understanding he has of the Muslim religion. Here lies the misunderstanding of another religion. The Petitioner was asked by the Court that before anything can be examined he must indicate to the Court on what his understanding on polygamy under Islam is. Only a lay man may say that a muslim has a right to have four wives; there is more to this aspect.

What this Court has to examine is, notwithstanding that there is no codification by legislation of marriages amongst Muslims, whether polygamy is encouraged or is permitted as an exception and not as a Rule. The Court brought to the notice of the Petitioner''s Counsel the passage in the Koran which permits polygamy.

In context of ploygamy under Islam a reference is to be found in the Koran in Sura IV: Woman. The first four verses are relevant on this aspect and recite:

(C)

SURA IV.-Women

MEDISA-175 Versus

In the name of God, the compassionate, the Merciful

O MEN fear your Lord, the hath created you of one man (nafs, soul), and of him created his wife and from these twain hath spread abroad so many men and WOMEN. And fear ye God, in whose name ye ask mutual favours,-and reference the wombs that bare you. Verily, is God watching over you.

And give to the ophans their property; substitute not worthless things of your own for their valuable ones, and devour not their property after adding it to your own; for this is a great crime.

And if ye are apprehensive that ye shall not deal fairly with orphans, then of other women who seem good in your eyes, marry but two, or three or four; and if ye still fear that ye shall not act equitably, then one only, or the slaves whom ye have acquired; this will make justice on your part easier. Give women their dowry freely; but if of themselves they give up aught thereof to you then enjoy it as convenient and profitable;

And entrust not to the incapable the substance which God hath placed with you for their support; but maintain them therewith, and clothe them, and speak to them with kindly speech". (The Koran: Translated from the Arabic by the Rev. J.M. Rodwell dedicated to Sir William Martin, K.T., DCL, late Chief Justice of New Zealand, published by J.M. Dent and Sons Ltd., London, first published 1909, reprinted 1929).

The Court has been cautious and careful to take to references on two translations from the Koran in the context of marriage and polygamy. The other translation reads:

In the name of the most merciful god.

(1) O Men, fear your Lord, who hath created you out of one man, and out of him created his wife and from them two hath multiplied many men and women: and fear GOD by whom ye beseech one another; and respect women who have borne you, for GOD is watching over you. (2) and give the orphans when they come to age their substance; and devour not their substance, by adding it to your own substance; for this is a great sin. (3) And if ye fear that ye shall not act with equity towards orphans of the female sex, take in marriage of such other women as please you, two, or three or four, and not more. But if ye fear that ye cannot act equitably towards so many, marry one only, or the slaves which ye shall have acquired. This will be easier, that ye swerve not from righteousness. And give women their dowry freely; but if they voluntarily remit unto you any part of it, enjoy it with satisfaction and advantage. (4) And give not unto those who are weak of understanding the substance which GOD hath appointed you to preserve for them; but maintain them thereout, and clothe them, and speak kindly unto them." (A Comprehensive Commentary on the Koran. Comprising the Sale''s translation and preliminary Discourse, by the Rev. E.M. Wherry, first edition 1884 reprint 1979 by R.S. Publising House, Allahabad, Volume II).

In both the translations, the meaning is totally compatible.

It is in reference to this very passage that the great jurist on Islamic Law, Asaf A.A. Fyzee commented: "Polygamy is only permissive in Islam. It is not the fundamental right of a Muslim to have four wives; therefore, it cannot be said that any provision of law in favour of monogamy involves a violation of Article 25 of the Constitution." (Asaf A.A. Fyzee: Outlines of Mohammadan Law p. 212). In reference to marriage, under subject, ''Curelty'', Fyzee observes: "Muslim law permits polygamy but does not encourage it, and the Koranic injunction (Koran iv, 3) shows that in pratice perfect equality of treatment on the part of the husband is, for all practical purposes, impossible of achievement. Hence, ''Muslim law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged. (Ibid.) The underlined portion Fyzee noticed from the comment of a decision of this Court Itwari Vs. Smt. Asghari and Others, .

There is goodness in every religion. The positive aspects are to be seen first. It is a dangerous game to tear tenets from another person''s religion out of their context for one''s personal advantage. This is what the Petitioner is attempting. Polygamy under Islam was always an exception, and never a generality. Then polygamy went and goes with the obligation of equality, equity, justice to be discharged or dispensed amongst more than one wife. The Koran speaks of conscience as an obligation on the husband before taking two, or three or four wives. It speaks of equality of love amongst wives, and equality which is within the sole perception of the woman, not the male. It is a hard discipline of the Islamic religion which requires perfection as any wife in a polygamous marriage can as of right speak out in a case of inequal treatment, and make matters difficult for a husband, Thus, a polygamous marriage, under Islam, is expecting with a mathematical justice of equality amongst the wives-the woman is the keeper of conscience. The husband only discharges it with an effort which borders on justice. The scales are with all the wives. If one complains of inequality no one can question her. Such is the discipline of the Koran.

The Koran warns the Muslim husband that he must fear the lord, in that, if he cannot bring himself by conscience to share his love and affection equally amongst all the wives, the edict of the Book has without reservations declared that keep to one wife.

The Petitioner can derive no advantage from the Koran. His morality is within his own religion and the law prohibits polygamy and for this temptation the Petitioner must be dealt with in accord with the law as it exists. The morality of polygamy being tolerated under Islam is bound by the sanction of the Koran which extracts the conscience of a muslim husband to do equal justice amongst wives, failing which not to tax his conscience to venture into polygamy.

While it is the function of this Court to intrepret upon the personal law of citizens of India when called upon to do so, it cannot legislate as this is the domain of the legislature. The Petitioner''s contention that Section 17 of the Hindu Marriage Act, 1955 or Section 494 of the Indian Penal Code, 1860 are ultravires as they offend his liberty, as he understands it, under Article 21 of the Constitution of India, is a myth of his own making and an immorality engineered by him and it affects neither the religion to which he belongs nor any concept of marriage under Islam.

The concept marriage and polygamy under'' Islam and as is referred to in the Koran is clear, but misrepresented and ill judged by lay-men outside this religion. On this very aspect, Syed Ameer Ali, on the personal law of the Mohammadans, remarked:

"He (Mohammad) restrained polygamy by limiting the maximum number of contemporaneous marriages and by making absolute equity towards all, obligatory on the man. It is worthy of note that the clause in the Koran which contains the permission to contract four contemporaneous marriages, is immediately followed by a sentence which cuts down the signficance of the preceding passage to its normal and legitimate dimensions. The former passage says: "You may marry two, three or four wives, but not more." The subsequent lines declare, "but if you cannot deal equitably and justly with all, you shall marry only one." The extreme importance of this proviso, bearing especially in mind the meaning which is attached to the word "equity" (aadl) in the Koranic teachings has not been lost sight of by the great thinkers of the Muslem world. Even so early as the third century of the era of the Hegira, during the regign of al-Mamum, the first Mutazalite doctors taught that the developed Koranic laws incalculated monogamy. And though the cruel persecutions of the mad bigot, Mutawakkil, presented the general diffusion of their teachings, the conviction is gradually forcing itself on all sides, in all advanced Moslem communities, that polygamy is as much opposed to the Islamic laws as it is to the general progress of civilised society and true culture. In consequence of this conviction a large and growing section of Islamists regard the practice of polygamy as positively unlawful; and this is particularly the case among the Mutazalas. Even among those Moslems who do not belong to this sect, especially in India, the idea is becoming a strong moral, if not a religious factor, and many extraneous circumstances in combination with this growing feeling are tending to root out the existence of polygamy from among the Mussulmans. A custom has grown up which is largely followed by all classes of the community, of drawing up a marriage deed containing a formal renunciation on the part of the future husband of any right or semblance of right which he might possess or claim to possess to contract a second marriage during the existence of the first. This custom serves as a most efficacious check upon the growth and the perpetuation of the institution of polygamy. In India more than ninety-five percent of Mohammadans are at the present moment, either by conviction or necessity, monogamist. Among many of the educated classes versed in the history of their ancestors and able to compare it with the records of other nations, the practice of polygamy is regarded with disapprobation amounting almost to disgust. In persia, according to Colonel Mecgregor''s statements, only two per cent of the population enjoy the questionable luxury of plurality of wives. It is earnestly to be hoped that before long all sections of Moslems will come to recognise that polygamy, like slavery, is abhorrent to the laws of Islam."-Personal Law of the Mohammedans. Mohammedan law, compiled from Authorities in the original Arbic, Vol. II Ameer Ali, (Syed), M.A., C.I.E. Third Edition, Thacker Spink and Co. Calcutta, 1908, pages 23, 24 and 25. (Koran, chap, iv, v, 3).

As social conditions in this nation and throughout the world continues to change, the reality of life is, that even without a code on personal law of Muslims in so far as the marriage is concerned, polygamy is going into oblivion. Education, changing patterns of the family structure, the structure of a family in the context of reality of the world, and economic necessities are on their own precipitating a situation where monogamy is becoming the reality though the religion permits a Muslim, with such sanction of conscience to venture into polygamy. But, the code upon which polygamy rests in Islam is strict and difficult to keep. Let no man misunderstand another''s religion.

In the totality of circumstances, which this Court has considered, the petition is devoid of any merit and is dismissed.