A reasonably popular TV show in India has
a highly respected retired senior police officer holding an informal civil
court that attempts to dispense with disputes – mostly matrimonial – before
they find their way into the local courts and take on legal ramifications. A
noble cause, nevertheless, had the normally unflappable retired civil servant
fly into a fury during one of the episodes. The reason – she had already tired
of the innumerable times she had to explain to the men that their wives were
not their property to dispense with as and when they felt the need. The latest
report and controversy surrounding the bigamy law hinges on the very same
discourse – the dispensability of one wife for another and the ease with which
more and more men and even couples have been able to circumvent the
restrictions of Section
494 of the Indian Penal Code.

 

Bigamy is outlawed in India with the
exception of the Muslim minority community which is governed by its own
personal/ family law. What this has, in effect, meant is that even non-Muslim
men have been able to use the method of quick-fix conversions to undermine the law.
From revered film stars to powerful politicians, the professional elite to the
educated populace, almost everyone has milked the benefits of this exception
made for Muslim personal law. While the last conducted survey on the subject as
far back as 1974 points to the prevalence of the practice more commonly amongst
the tribal’s of the country, even between the Hindu and Muslim communities it
is the former who showed higher incidence (at
5.8% as opposed to 5.6 %) which when converted to actual numbers with
reference to the actual strength of both populations is a substantial difference.

The Supreme Court of the country had
already made a very clear judgment in 1995 in what is famously called the Sarla
Mudgal vs. the Union of India case whereby a conversion to Islam would not protect
a man from the bigamy law if the first marriage was prior to his conversion and
as a non-Muslim. It is on the basis of this judgment and another in 2000 that
the law commission filed a report
seeking for amendments in the family law under the Hindu Marriage Act (HMA) as
well as other religious personal laws.

While the Muslim clergy have been quick
to come to the defense of bigamy and polygamy within Muslim law the truth is
that, in practice, even the Muslim men do not use bigamy and polygamy in the
spirit that it was meant to be. Many of the religious clergy have been quick to
explain the beginnings of the practice – at a time of war when women – widows
and orphans – outnumbered men necessitating such a practice. The point that
seems to be missed is that the practice was introduced as an adaptation to the
circumstances. Perhaps it is time for this practice to be reviewed according to
the present circumstances.

The law commission, on
its part, has been on the defensive as experience has shown that any attempts
at revisions in laws, particularly those pertaining to women with respect to
religious groups have always been a volatile issue. It has been quick to
reassure the religious leaders that it does not intend to change any laws with
relation to bigamy within the Muslim personal law and only wants insertions
that would prevent the misuse of conversions to break a law. But
conversions-for-marriage do not make a significant number of the bigamy cases.
It is the use of this method by the powerful elite of the country that makes
salacious media events out of these episodes only to shift focus away from
women who actually bear the consequences of such alliances. In many parts of
the country it is seen as a male prerogative and with tacit social acceptance many
do not even feel the need to use conversion’s flimsy cloak of legality.

Multiple marriages have socially and
legally punished women rather than men. The Bigamy Law has been under cloud for
some time especially since the Supreme Court passed a decision that women in substantially
long live-in relationships should be given the same rights as a legally wedded wife.
This was to protect the second wife who under the bigamy law loses all rights
since the marriage is considered null and void in the absence of the
dissolution of the former. Besides, in the event of the death of the spouse the
family often disinherited them since the marriage would not be legally recognized.
And with uneducated women very often duped into such marriages or unable to get
out of them for fear of ostracism, social boycott and stigma continuing to live
within such a legally tenuous alliance, this was the protection that the courts
were offering.

On the flip side men simply deserted the first wife to live with
the next with no support or maintenance which a Muslim wife is eligible to (but
might not necessarily get). Bigamists often go scot free because courts can
only act on a formal complaint, the onus of which lies on the wife. Thus, most
cases of bigamy often go unregistered because women fear stigmatization for prosecuting
their own husbands. Besides, single and deserted women have a very poor status
in our society. Both the instances of the SC decision – of awarding women in
live-in relationships the status of a wife and of capping
conversions-for-marriage – stems from these situations that women find
themselves in.

But conversions are merely a symptom of a
much larger problem that exists, irrespective of religious affiliations, in communities
which see women as either commodities or unequal entities in the social
hierarchy. Neither is bigamy common only among the Muslim community and nor is
there enough evidence to suggest that every Muslim man who enters a bigamous
relationship does ‘equal’ justice – by way of social and legal rights – to all
his spouses as stipulated by their personal law. Most of the times the women
are simply deserted, left to fend for themselves and their children. The irony
is that despite the fact that progressive groups both within and outside Muslim
society in India do not favor bigamy, religious leaders continue to block legislative
reform. There have been instances of demands that Indian Muslim girls be
exempted from the provisions of the law restraining child marriage. And it is
against this background that there once again lies the potential of the issue trickling
down to one of religious sensitivities over women’s rights.