Beyond Triple Talaq: Can the Supreme Court Finally Tackle Polygamy?

Nine years ago, the Supreme Court rightly told Muslim men that they could no longer end a marriage with three words uttered in anger. Today, it is being asked whether they can engage in a second, third, or fourth marriage when the first wife is still living. A fresh PIL challenging polygamy under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, pending before Supreme Court, revives the question that Court left open in Shayara Bano vs Union of India, and it does so at the time when the top court is no longer in mood for deciding such questions by playing theologian.During the nine-judge Sabarimala reference hearings, both petitioners and the Union agreed on something striking: that the Essential Religious Practice (ERP) test has no explicit base in the constitutional text. Article 25 restricts religious freedom on grounds of public order, health, and morality and not on a judicially invented inquiry into what is theologically essential to a religion and what is not.What emerged as an improvement on ERP test from the Sabarimala hearing was the Doctrine of Proportionality. It is, in substance, what the operative majority in Shayara Bano, without calling it proportionality. They struck down instant Triple Talaq not by pronouncing on Quranic meaning, but by holding it as manifestly arbitrary under Article 14.Proportionality, in my opinion, is an approach far superior than Essential Religious Practices test, regardless of whether polygamy is essential to Islam, which in any case it is not. Proportionality asks whether a restriction serves a real purpose, is rationally connected to it, is the least intrusive option, and do fair balancing of interests, the questions that ERP was never built to answer.As Sabarimala Plays Out in Supreme Court, the Stakes Now Go Far Beyond EntryThe case against treating polygamy as a categorical imperative actually comes from within the Quran, and is not some external imposition, as a larger section of the community fears. Surah An-Nisa 4:3 “limits” (not permits) marrying up to four wives, and ties that “limitation” to husband's ability to be just. I am using the word “limit” here since in Pre-Islamic Arab, men were engaging in multiple marriages going up to 20-25 in number depending upon their wealth and status, so the verse basically restricted these multiple marriages up to 4 only. Verse 4:3, as we’ve seen, puts a condition on men to be just towards all 4 wives, Verse 4:129 then declares that such fairness between wives is never fully achievable, however hard one tries, Reading together, this sounds more like a restriction on polygamy, than a Quranic permission.The Hadith literature says the same thing, even more outrightly. As per Sahih Al Bukhari, Prophet Mohammad refused to let Hazrat Ali take a second wife while Fatimah was alive, saying, "Fatimah is a part of me, and whatever hurts her hurts me”A separate tradition, recorded in Sunan Abi Dawud 2133 and echoed in Tirmidhi, Nasa'i and Ibn Majah, warns that when a man has two wives and he is inclined to one of them, he will come on the Day of judgement with one side of his body drooping or paralysed, as if half of him is disabled.Classical Islamic jurists took this seriously rather than simply reading past it. Imam Nawawi of Syria held that going beyond four wives is forbidden and that limiting oneself to one is recommended. Ash-Sharbini of Egypt went further, writing that staying monogamous, without an obvious need, is itself Sunnah.Modern reformist scholars like Egypt's Muhammad Abduh read verses 4:3 and 4:129 together and concluded that the Quran's own text makes polygamy a practical impossibility and the state was entitled to restrict it.Syria's Muhammad Syahrur argued the permission was tied specifically to widows already caring for orphans, which means most polygamous marriages happening today do not even fall within the verse's actual scope. Pakistan’s Fazlur Rahman treated the verse as a response to a particular historical crisis rather than a standing rule for all time. India's own Maulana Wahiduddin Khan traced the permission to the demographic emergency after the Battle of Uhud, tied to an actual surplus of women that simply doesn't exist in India today.Khula Without Consent: Why Muslim Women Still Can’t Exit Marriage FreelyThe wider Muslim world has taken these readings as asking for serious intervention. Tunisia's 1956 Code of Personal Status abolished polygamy outright, through an explicit act of Ijtihad. Turkey banned it in the 1920s under Ataturk's secular reforms.Tajikistan, Uzbekistan, and Kyrgyzstan followed with comparable family-law reforms through Soviet-era Secular Civil Codes. Morocco, Egypt, Indonesia, and Pakistan didn't go that far, however put reasonable restrictions such as, proof of financial capacity, notice to the existing wife and court’s approval etc, that the practice is tightly hemmed in rather than being freely available.These reforms were possible in Muslim majority countries because states still exercised ijtihad, ie independent legal reasoning by a qualified jurist. By the early tenth century, Sunni legal culture had settled into taqlid ie deference to the four founding schools and the gates of ijtehad had been closed. This closure held for centuries until modern reformists like Egypt’s Muhammad Abduh challenged it as having frozen the law in place. What set Tunisia, Egypt, Morocco and Pakistan apart is that each built a state linked institution with the standing to reopen the gates of Ijtihad.Egypt's Al-Azhar has spent a century training reformist scholars who would go on to shape state legislation and fatwas directly. Tunisia's Zaytuna played the same role for the 1956 code. India has no equivalent religious institution and cannot easily build one. Article 28 bars religious instruction in state-funded educational institutions, and Article 27 bars the state from taxing citizens to promote any particular religion ruling out anything resembling a state-linked seminary.The All India Muslim Personal Law Board, despite its visibility, is a private body with no electoral mandate or state recognition, its authority within the community is, at best, informal. Nor are Indian Muslims a single national religious polity the way Tunisians or Egyptians are, they span over Hanafi, Maliki, Shafii, Hanbali, Bohras, Shias and their further subsects etc. Most importantly, India has no legislature that can double as a Muslim legislature the way Tunisia’s or Egypt’s parliaments effectively do. India’s Parliament, by contrast, governs a religiously plural population and has no comparable mandate to speak for Muslims as a distinct legal community.This is precisely why reform in India cannot follow the Al-Azhar or Zaytuna model.The petitioners are right to an extent, that the Parliament should codify Muslim Personal Law, but the process needs to be spelled out more clearly. The government should set up a committee of Muslim legal scholars, comprising of Indian Islamic Jurists as well as Islamic scholars from Muslim-majority countries, to carry out the kind of Ijtihad that has driven reform in other Muslim majority countries and produce a Draft Code well informed by Quranic principles. That draft would then go to our Parliament, informed by consultation with Muslim jurists, but ultimately answerable to Articles 14, 15, and 21 of the Constitution of India rather than to any particular school’s doctrine. Meanwhile, Supreme Court’s job here is narrower than deciding what Islam requires. Its role, for now, is only to test the current, uncodified exemption against the Standard of Proportionality.(The author is a Lecturer at Faculty of Law, Jamia Millia Islamia. All views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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Polygamy in India: Why the Supreme Court Must Look Beyond Religious Doctrine

The Supreme Court’s role, for now, is to test the current exemption against the Standard of Proportionality.

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