"Penal Action Cannot Be Differentiated Based On Religious Practice": Plea In Supreme Court Challenges Legal Recognition Of Bigamy Among Muslims

A petition has been filed in the Supreme Court seeking declaration of bigamy as unconstitutional for all religions.

The plea has been filed by Advocate Vishnu Shankar Jain praying for striking down section 494 of the Indian Penal Code in so far as the words 'in any case in which such marriage is void by reason of its taking place' are concerned and section 2 of Muslim Personal Law (Shariat) Application Act, 1937 in so far it recognizes the system of bigamy / polygamy prevalent in Muslim community

It is submitted that the practice adopted by a religious group cannot be basis to exclude such person from the purview of penal action which is otherwise punishable for others. In the present case the situation is that Muslims are excluded from the penal law related to bigamy whereas other citizens are liable to be punished for the same act.

It is stated that the petition has been filed under Article 32 of the Constitution of India to declare that the bigamy in so far it has been made applicable in India by Section 2 of Muslim Personal Law (Shariat) Application Act,1937 is ultra vires to Article 14 of the Constitution of India and by virtue of Article 13(1) of the Constitution same has become void and non-est.

"The second marriage solemnized by a Hindu, Christian or Parsi during the life time of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if contacted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India"
- Plea in SC

The main thrust of the plea is that State cannot make criminal law in such a manner that creates discrimination by making the same act (bigamy) punishable for some & "enjoyable" for others.

"In India the irony is that bigamy has been made punishable under Section 494 of IPC subject to applicability of personal law"

The petitioner contends that section 494 of IPC provides that 'Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine'.

"From the aforesaid provision it is clear that the offence of bigamy is punishable only when the second marriage is void. It means that the validity of second marriage depends on the recognition of such marriage under personal law," the plea reads.

The plea further states that under para 256 Muhamedan Law the marriage solemnized by woman during life time of her husband is void and she may be punished under Section 494 of IPC. "Therefore, a Muslim woman is being discriminated before law. The Muslim Law even though permits male persons to have four wives at the time but at the same time para 256 (as per Mulla Muhammdan Law) forbids the female to contact another during the life time of her husband," the plea reads. This, the petitioner has stated is "gender bias" and is discriminatory and against the provisions contained in Article 14 of the Constitution of India.

It is contended that Article 25 of the Constitution protects only the essential religious practices of a religion and  personal law of the subjects, unconnected with religion, does not come within the scope of Article 25 of the Constitution of India. The practice of Bigamy is not an essential part of Muslims or any other religion, the plea states.