Allahabad HC Issues Notice To Attorney General On PIL Challenging Validity Of Muslim Personal (Shariat) Application Act, S. 494 IPC

The Allahabad High Court has issued a notice to the Attorney General for India on a Public Interest Litigation (PIL) plea challenging the validity of the Muslim Personal (Shariat) Application Act, 1937 as well as seeking a declaration that Section 494 IPC [Bigamy] is ultra vires to the Constitution of India.

The bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi also gave 6 weeks's time to the Deputy Solicitor General of India to file a counter affidavit in the matter.

The Court is essentially dealing with the PIL plea filed by Hindu Personal Law Board (through its president Pawan Kumar Das Shastri) which states that in ancient India, the polygamy culture was followed by Hindus including Buddhists, Jains and Sikhs, however, it has now been prohibited by law but, on the other hand, the Muslims are still permitted to perform polygamy because of application of Act impugned (Muslim Personal law ( Shariat) Application Act 1937).

The PIL plea argues that restricting Hindus, Jains, Sikhs and Buddhists to practice polygamy and allowing the same to be practised by the Muslims is discrimination only on the ground of religion and so violative of fundamental rights guaranteed by Article 15.

Similarly, the PIL plea adds, excluding Muslims from the scope of punishment under section 494 IPC is also a form of discrimination.

"In the ancient era, polygamy was permissible not only amongst the Muslims but even amongst the Hindus. It was permissible because due to frequent war, the male population was used to die in mass and so to perform the polygamy was the requirement of the day for feeding and maintaining the ladies and their children but the situation of frequent war killing male in mass is over now and so the personal law should also be changed," the PIL plea avers.

Further, the PIL plea states that Article 44 of the Constitution provides for a mandate to the legisltrure to come up with a common civil code applicable on all the citizens of the nation as mandated by the constitution, however, the government, while enacted personal laws of Hindus including Baudh, Jain and Sikh, but did not dare to interfere with the personal laws of Muslims.

"Hindus lost their personal laws in 1955, when Hindu Marriage Act 1955, Hindu Succession Act 1955, Hindu Guardianships and Ward's Act 1955 and Hindu Adoption and Maintenance Act 1955 were enacted by the government in spite of strong opposition of Hindus," the plea states.

Stressing that the rising of rape offences is directly connected with the practice of polygamy, the PIL plea has pleaded that the effect of polygamy culture amongst the Muslims is that rich and powerful Muslim male marry with several ladies and the poor Muslims don't get a wife, prompting them involve themselves in criminal activities.

The PIL plea adds that the Polygamy culture violate the fundamental and basic human rights of ladies and it is a discrimination only on the ground of ‘Sex' and so the government must ban it through proper legislation.

"Hindus has been restrained by law to practice polygamy but the Muslims have not been restrained so far. This is discrimination only on the ground of ‘Religion’ and so violative of article 15 which restricts the state from discriminating amongst its citizens ‘only on the ground of religion’ and so either the Government should repeal the provision in section 5(1) and 11 of Hindu Marriage Act or to legislate a law declaring the polygamy by the Muslims also as void or to legislate the law banning the polygamy culture amongst the Muslims..the activities of love Jihad are at its full swing as even married Muslims can marry and bring the girl from Hindu or Christian community to his home without divorcing his existing wife or wives. This is the situation because the law made on the subject is discriminatory only on the ground of religion," the PIL plea says.

Further, observing that the divorce provisions among the Muslims are not codfied, while it is codifies for the Hindus, the PIL plea states that asking a Hindu to go to court to seek the decree of divorce on well explained grounds, but to permit the Muslims to divorce their wife without any valid well explained grounds and without a decree of divorce from the competent civil court, is discrimination only on the ground of religion and so it is violative of article 15 of the constitution.

The PIL plea also adds that a ban on bigamy is necessary for the proper implementation of the new law going to be legislated by Government of Uttar Pradesh through which the population control measures are to be brought in operation.

It also states that in Ram Rajya the communal tension was zero as there were not so many religions and today, when there are so many religions, the communal tensions are taking place.

Against this backdrop, the plea states and prays thus:

- The provision in section 5(1) and section 11 of the Hindu Marriage Act 1955 and 494 IPC 1860 are against the fundamental rights guaranteed by article 14 and 15 of the Constitution and so the Government of India be directed either to repeal the provisions in section 5 (1) and section 11of Hindu Marriage Act or to make a similar provision applicable on Muslims means that either every Citizen belonging to any religion should be permitted to perform polygamy or none should be allowed to do so within the boundaries of Republic of Bharat.

- Either the bigamy by any citizen in the territory of the Bharat be made a punishable offence means either the provision in section 494 IPC is applied on all citizens belonging to any religion or it should apply on none means that the provision in article 15 which mandates the state from discriminating amongst its citizens ‘only on the ground of religion ‘be respected and applied on all citizens without any discrimination in any manner. 

- section 2 of ‘ Muslim Personal Law ( Shariat ) Application Act 1937 be declared as Ultravires/void to the provisions contained in article 13 and 15 of the Constitution of India and direct the respondents and it’s instrumentalities not to give effect to the provisions of above mentioned Act.

- Direct the respondents to either to apply the provision contained in section 494 I.P.C. on all the citizens of the nation without discrimination of their religion or to repeal the same.

Case title - Hindu Personal Law Board Thru.G.S.Pawan Kumar Das Shastri vs. U.O.I. Thru. Secy. Min. For Law And Justice N.Delhi And Anr [PUBLIC INTEREST LITIGATION (PIL) No. - 17996 of 2021]

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