Polygyny And Feminism - Transgression Of Muslim Women’s Rights In India
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Category: General Law
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POLYGYNY AND FEMINISM: TRANSGRESSION OF
MUSLIM WOMEN’S RIGHTS IN INDIA
Angana S Asok, B.A. LL.B., Ramaiah College of Law, Bengaluru
ABSTRACT
Polygyny - The prejudiced practice that still persist in this 21st Century. When we usually refer to the institution of marriage, we conceptualize it as a bigamous marriage where the marriage is solemnized between one man and one woman, but the institution of marriage always need not be bigamous. There are a lot of countries which still practice polygynous marriage which is a kind of marriage where one man is allowed to marry multiple women. These kinds of marriages are supposedly violating and discriminating women based solely on their gender, therefore polygyny is not morally accepted by a majority of population all around the world. Polygyny is a variant of polygamy, a general term which refer to marriage with more than one person. Polygamy is dissected into two terms- Polygyny and Polyandry. Polyandry is the practice where a woman is allowed to marry more than one Husband.
Evidently the practice of polyandry is not as common as the practice of polygyny. The practice of polygyny violates everything which the feminism today stands for and therefore it is really important to comprehend how both of these concepts collide and what can be the way forward. In this article we will be focusing on Polygyny exclusively, practiced among Muslims in India and how such unfettered practice of Polygyny negatively slams the ideologies of feminism. This article also focuses on how polygyny repeatedly is prejudiced against women and how it transgresses the Muslim women’s rights. Keywords: Polygyny, Feminism, Muslim, Violation, Transgression, Equality, Misogyny
INTRODUCTION
This article seeks to provide a succinct but comprehensive overview of the issues at the intersection of polygyny, feminism, and Muslim women's rights in India. It is crucial to continue these discussions to foster an environment of equality and empowerment for all women. Polygyny, the practice of a man having multiple wives at the same time, is a topic of significant debate and discussion, particularly in the context of Islamic teachings and the lived experiences of Muslim women. In many Muslim-majority countries and communities, polygyny is accepted under specific religious frameworks, primarily derived from interpretations of Islamic texts. This practice, however, raises complex questions about gender equality, women's rights, and personal agency, making it a focal point for feminist discourse.
Islamic law, or Sharia, permits a Muslim man to marry up to four wives, provided he can treat them equally and justly. However, the ability to practice polygyny is often constrained by social, cultural, and legal factors that vary widely across different Islamic societies. This is also a departure from other personal laws in India where monogamous marriage is the ruleThe Hindu Marriage Act, 1955, states that a man may have only one wife at a time. Bigamy (marrying someone while already married) is punishable under Indian law, ensuring that monogamous marriage is the norm for Hindus. Christian personal law in India also adheres to the principle of monogamy. The Indian Christian Marriage Act, 1872, and the Special Marriage Act, 1954, both stipulate that a person can only have one spouse at a time. Bigamy is considered a punishable offense.
Various tribal and regional laws may also permit variations in marriage practices, including polygyny among certain indigenous communities in India. However, these practices often exist within specific cultural contexts and may not be supported by broader legal frameworks. In this context it is inevitable to unfold the concept of polygyny, the prevailing discriminatory aspects and the need for its ramifications POLYGYNY: UNFOLDING Polygyny is debated in various circumstances, whether this practice is merely just a patriarchal norm to curb the rights of Muslim women and transgress Muslim women rights or whether it has a religious sentiments attached to it and whether it has a practical aspect to it.
Introspecting into the history of how polygamy was emerged, it was practiced way before Islam, by the Mormons in 1831 who were the members of the church of Jesus Christ of latter-day saints known as the Mormon Church. Joseph smith the founder of the LDS CHURCH was the one who was in favor of plural marriages and he himself had multiple wives. 1He would assert that lord has communicated to him that such plural marriages were not considered to be adultery if such acts were done at divine command. The basic idea behind polygyny was the concept that “multiple women could be eternally sealed to the same man”. 2But this practice of polygyny was condemned in 1890 by Wilford Woodruff who was the president of the LDS Church at that time and the church ousted anyone who practiced polygyny. Before the origination of Islam, women were treated like prostitutes and sex objects.
There was no concept of marriage thereby it was easier for men to take advantage of women. Women were treated worse than animals, they were merely considered as chattels. Women were not permitted to avail education or touch any kinds of books. Polygyny was practiced without any limit and men could cohabit with how many ever women they desired to be with3. Muslim women could not have a dignified life in such a barbaric society The historical context of polygyny in Islam can be traced back to the 7th century, where it was permitted as a means to ensure the protection and support of women, particularly in times of war or socio-economic instability. The Quranic verse most commonly associated with this practice is Surah An-Nisa (4:3), which states, "And if you fear that you will not be just to the orphans, then marry those that please you of [other] women, two or three or four.
But if you fear that you will not be just, then [marry only] one. "4 While the Quran emphasizes justice and equity in such arrangements, the lived reality often diverges from these ideals, leading to significant inequalities. Origination of Islam secured a dignified status for women in the society. Islam has brought in the concept of “Nikah” which simply means marriage among Muslims. Origination of Islam has also limited polygamy and gave certain rights to Muslim women such as right to receive dower or Mehr which they are entitled to receive as a consideration in respect to the marriage from the husband. 1 Polygamy and the church: A history, https://www. pbs. org/wgbh/americanexperience/features/mormonspolygamy/ (Accessed: October 2, 2024).
2 Kathleen Mulhern, what religions practice polygamy, PATHEOS (September 12,2024, 9;30 PM),
https://www.patheos.com/answers/what-religions-practice-polygamy 3 Shahbaz Batt, The status of women after the advent of Islam, Journal Volume-3, Special Issue June, 2021 ISSN 2581-9100, EDUCATIONAL RESURGENCE JOURNAL, pg.60-69(2021)
4 The Holy Quran, Surah An-Nisa, 4:3.
Even after the emergence of Islam, polygamy has not been completely abolished but it has merely limited the polygynous practice permitting Muslim men only to have a maximum of 4 wives. The very reason why polygyny was permitted by Islam was because thousands of men had shed their lives in the battle of Uhud5 and the aggregate of men in the society decreased alarmingly, constructing an imbalance in male and female population6. As a result of such situation men could marry multiple wives so that widows and orphans are taken care of properly. But later on, even when the situation of war came to an end, the polygamous marriage still continued among the Muslims and is continuing till date. 7It is pertinent to note that Islam has three degrees of permitted deeds which includes obligatory, recommended and allowed.
The custom of polygyny is not authoritative in nature, it comes under the degree of allowed, therefore such practice is not imposed upon Muslim men as a necessity. Since it is an unfettered power given to the Muslim men, they use it to their advantage and therefore do not treat all their wives equally. The societal norms and the times have changed now, this practice is seen as unfair to the Muslim women and their rights. It is considered to be a regressive practice which needs to be abolished. Quran only allows polygyny under strict conditions. Surah(verse)4:3 of Quran quotes- 8“If you fear that you might not treat the orphans justly, then marry the women that seem good to you: two, or three, or four. If you fear that you will not be able to treat them justly, then marry (only) one, or marry from among those whom your right hands possess.
This will make it more likely that you will avoid injustice”. The interpretation that has been derived by the commentators basically states that one shall only marry more than one wife if he can equally treat all the wives, if he cannot do justice to all of them by treating them equally then it is better to only have one wife. Quran itself which is depicted as the primary source of Islam clearly states that the concept of polygyny should be exercised by a Muslim man only if he is capable of treating his wives equitably in every aspect. The interpretations to this verse were given by two sets of people. One set of people took it to their advantage and interpreted that Islam allows Muslim
5 Supra note 3
6 Farhan Iqbal, why does Islam allow polygamy, https://www.alislam.org/articles/why-does-islam-allowpolygamy/ (Accessed on September 10, 2024, 5:30 PM) 7DifferenttypesofMarriagesinIslam,Pg.35-42, https://www.ucis.pitt.edu/global/sites/default/files/curriculum_materials/contributed/DifferentTypesofMarriagei nIslam.pdf
8 Quran
men to practice polygamy in any way they desire. Opposition did not see it as an exclusive pass for Muslim men to practice polygamy but a practice that should only be exercised under circumstances embedding strict restrictions. In the era of constitutional protection to women here is a dire need to introspect the intersection of polygyny and feminism. POLYGYNY AND FEMINISM: INTERSECTION Feminism challenges patriarchal structures that perpetuate gender inequalities and advocates for women's autonomy and rights. In the context of polygyny, feminists argue that the practice often leads to the commodification of women, reducing them to mere vessels for procreation and caretaking. They assert that polygyny frequently results in emotional, economic, and legal disadvantages for women, undermining their dignity and individuality.
9 In India, the feminist movement has historically advocated for the rights of women across different communities, including Muslims. These activists highlight that polygyny often reinforces patriarchal norms that favor male authority and control, perpetuating a cycle of oppression for women. 10 The ideology that is enumerated in Feminism basically states that every gender should be furnished with equal rights and opportunities without any discrimination. 11 The main aim of the first wave of feminism was to provide education opportunities to women. 12Feminism is an ideology that demands that women are worthy of attaining equal social, economic, and political rights and therefore women cannot be prejudiced and stripped of their opportunities solely on the basis of their gender.
Feminism strives to eradicate the patriarchal structure of the society and exclude the gender norms that is associated with certain genders which is the sole reason attributing for the inequality that exists in the society. Feminism and polygamy are two concepts that cannot meet a common end due the 9 Ghosh, S. (2020). "Feminist Perspectives on Polygyny: A Critical Analysis. " *Journal of Gender Studies*. 10 Choudhury, S. (2018). "Polygyny and Its Discontents: The Muslim Women's Perspective. " *Contemporary South Asia*. 11 IWDA, What is Feminism, https://iwda. org. au/learn/what-isfeminism/#:~:text=Quite%20simply%2C%20feminism%20is%20about,to%20realise%20their%20full%20rights . (Accessed on October 9, 2024, 10:30 AM) 12 HUMAN RIGHTS CAREERS, What is Feminism, https://www. humanrightscareers.
com/issues/what-isfeminism/#:~:text=At%20its%20core%2C%20feminism%20is,%2Dexpression%2C%20and%20much%20more . (Accessed on October 3, 2024, 5:39 AM) fundamental reasons why both of the concepts exist in the first place. 13Polygyny is a consequence of the deep-rooted patriarchal ideologies which position women in a light of subordination and dependence. The concept of polygyny that is still practiced by Muslims in various countries is astonishingly violative of the concept of equality. Muslim women are stripped off their right to have any say in their own marriage which is a transgression of their basic rights Feminism views such practice as discriminatory and preferential towards men. The key takeaway that anyone can get from the practice of polygyny is that women are considered as objects by the Muslim men. Polygyny is a gateway of justified deception in the name of religion.
The practice of polygyny existed in the beginning due to a solid reason which was to provide support to Muslim women who were left behind to fend for themselves when their husbands died in the battle of Uhud, but now such practice is just abused by so many Muslim men to ill-treat their wives. Feminism contends that there is no such need of this practice to exist since the situations are not the same as compared to earlier Polygyny is a favorable practice for men, which causes a lot of mental and emotional distress to the wives. The societal norms propounds that a woman should always accommodate more than a man and the woman should habitually endure hardships in a marital relation. Therefore, such ideologies will entrap a woman in her marital relation even if she desires a way out of such relation.
So, when practices such as polygyny still persist, it becomes arduous for the women to break off their marriage even if they do not consent to the husband’s polygynous relation. Hence this breaks the woman in the marital bond and cultivates insecurities and mental agony in her. The practice of polygyny is a deviation from the normal. The idea of having four wives is revolting because the husband is not engaged in just one woman but multiple women at the same time which technically amounts to deception. That is solely because society have trademarked women to adapt to all situations and men are labelled as people with needs, desires and dreams. Feminism is actively attempting to alter such practices so that women are given a respectable status in the society. Therefore, there is a necessity to revise such ancient practices.
With the advancement of times, the society have also undergone a lot of changes and therefore it is necessary to act upon such changes and bring in strict laws to eradicate the practice of 13 Suud Sarim Karimullah, A Feminist critique of the practice of polygamy in the context of Islamic law and human rights, Vol. 6 No. 1(2024), INDONESIAN JOURNAL OF LAW AND ISLAMIC LAW(IJLIL), Pg. 1- 16(2024) polygyny which is prejudiced towards women solely on the fact that they were born as a woman. INFRACTION OF THE RIGHTS OF THE MUSLIM WOMEN IN INDIA: REPERCUSSION OF POLYGYNY The infraction of rights of Muslim women in India can be analyzed from the constitutional viewpoint where the concept of feminism is imported through various provisions.
LEGAL FRAMEWORK
AND
CHALLENGES
The legal framework governing marriage for Muslims in India is primarily derived from personal law, which allows for polygyny. The Muslim Personal Law (Shariat) Application Act, 1937, recognizes polygamous marriages, failing to provide adequate protections for women involved in such arrangements. Critics argue that this legal permissiveness perpetuates gender inequality and hinders women's rights. 14For instance, many women in polygamous marriages face challenges such as lack of financial security, emotional distress, and social stigma. The absence of legal recognition and protection for the rights of co-wives often leads to intrahousehold conflicts, where the status and welfare of women become secondary to the husband's prerogatives.
Moreover, issues like property rights, maintenance, and child custody often remain unresolved for women in polygynous marriages, further marginalizing them. 15 arbitrary practices such as polygyny and Nikah halala since the said practices are infringing the fundamental rights enumerated under article 14,15 and 21. Yet the court only considered the matter of triple talaq and did not put forward any judgment regarding the other unjust practices. POLYGYNY- A CONSTITUTIONAL CLASH Article 14 of the constitution is severed into two parts: Equality before law and Equal protection of the laws. Equality before law is a concept that identify that every citizen in India shall be treated equally in the eyes of law and Equal protection of the laws conceptualizes that uniform laws will be applied to all people across the society.
Therefore, we can intelligibly diagnose that permitting the practice of polygyny for men is exceedingly violative of Article 14 which 14 Behuria, A. (2019). "Legal Framework of Polygamous Marriages among Muslims in India. " *Indian Journal of Family Law*. 15Khan, N. (2017). "Intra-household Dynamics of Polygyny: Voices of Women. " *Women’s Studies International Forum is directing that everyone should be treated equally irrespective of their caste, gender, creed etc. Polygamy, as a practice, violates the principles enshrined in Article 14 in several ways, including gender discrimination, denial of equal rights within marriage, and perpetuation of social and economic inequalities. Recent case laws further illustrate how polygamy violates the constitutional right to equality16 .
Hence it is transparent that polygynous marriages are an infraction to the Muslim women’s rights since such practice is entirely discriminating the Muslim women based on their sex. Polygamy allows men to have multiple wives. While preventing women from doing the same, it discriminates against women. This gender-based inequality runs counter to Article 14, which protects people from sex-based discrimination. Polygamy perpetuates inequality and violates the equal legal protection principle by allowing men to enter into polygamous marriages while forbidding women from doing so. The landmark case Sarla Mudgal v. Union of India 17 addressed this issue, where the Supreme Court of India considered the situation of Hindu men converting to Islam to marry additional wives without divorcing their first spouses.
The court decided that these conversions, which were carried out only to allow for a second marriage, were illegal and against Hindu law. This decision emphasizes the ban on gender discrimination and the idea of equality before the law. In a more recent case, Joseph Shine v. Union of India (2018)18, the Supreme Court annulled Section 497 of the Indian Penal Code, which criminalized adultery. The court stressed the significance of gender equality within marriage, stating that women should not be regarded as their husbands' property. This decision emphasized the need to eliminate laws that reinforce gender-based discrimination and to uphold the principles of dignity and equality as enshrined in Article 14.
TRANSGRESSION OF MARITAL RIGHTS Polygamy frequently casts women as second-class wives, it violates their rights and dignity and causes them to feel neglected, inequitably treated, and emotionally distressed. Article 14 of the Constitution, which protects marital equality and dignity, is violated by such treatment. The Supreme Court of India declared the practice of triple talaq, or immediate divorce, to be
16 Sri Srinivasa Theatre v. Govt. of Tamil Nadu, (1992) 2 S.C.C. 643
17 AIR 1995 SC 1531
18 AIR 2018 SC 4898
illegal in the historic case of Shayara Bano v. Union of India (2017)19 because it is arbitrary and discriminatory. This decision upheld the rights of persons under Article 14, especially for women, and emphasized the significance of maintaining equality and dignity within marriage. Citing the K. S. Puttaswamy v. Union of India (2017)20 case, Justice D. Y. Chandrachud emphasized the need to acknowledge women as equal partners in marriage who should be granted constitutional protection. VIOLATION OF THE RIGHT TO LIFE Article 21 is another fundamental right of the Muslim women that has been infringed when polygamy is sanctioned. Article 21 states that no person should be stripped off their life or their personal freedom unless and until such prohibition is according to a procedure established by the law.
It is precisely evident that every Muslim woman has their own personal freedom to lead a dignified life and thereby they have the right to live according to their ideologies and such a right cannot be cramped by any biased religious practices. The right to life, as outlined in Article 21 of the Indian Constitution, includes a wide array of freedoms and entitlements, notably the right to live with dignity and security. Polygamy fundamentally violates these rights for women, resulting in emotional turmoil, financial insecurity, and social exclusion. In the case of Venugopal K v. Union of India,21 a writ petition was filed by a woman seeking to invoke Section 494 of the Indian Penal Code against her husband. The court ruled that such marriages are often used to harass and deceive unsuspecting women under the guise of personal laws.
This case underscored the fact that since Muslim men are legally permitted to marry up to four wives without clear regulations on the registration of these marriages, the petitioner argued for the enforcement of Section 494 IPC against all individuals engaging in bigamy, regardless of their religious laws. It has been acknowledged that the practice of polygamy infringes upon Article 21 of the Constitution, as a woman's rights to dignity, social respect, and self-worth are essential elements of her right to life under this article. FREEDOM OF RELIGION Islam does not hold that polygyny is a fundamental principle. Because any change to religious
19 AIR 2017 SUPREME COURT 4609
20 ( 2017 )10 SCC 1
21 (2008) 5 SCC 1
ideas would fundamentally alter their character, Article 25 of the Constitution safeguards religious beliefs. The crucial question here is determining what exactly qualifies as "an essential part of the practice of a religion. " The respondents in this instance contend that talaqe-biddat and polygamy are essential Islamic customs. A religion's core beliefs are based on behaviours that are fundamental to that belief system. Practices that are essential to upholding a religious conviction are considered necessary however, in the case of Abdul Jalil v. State of Uttar Pradesh22, the Hon'ble Supreme Court clarified that there is no Quranic prohibition against moving tombs.
It is noted that some Muslim clerics misinterpret the Quran, endorsing practices like polygamy and unilateral divorce It has been observed that certain Muslim clerics promote unilateral divorce and polygamy by misinterpreting the Quran. As long as it doesn't conflict with morality or public order, it is maintained that Muslims are free to publicly administer and control their religious affairs under Article 26(b). Although a religion has this right, courts also have the power to decide what, in light of the beliefs of that faith, constitutes a constitutional right or ceremony. As we say, there are always two sides to a coin. 23The ones who advocate for polygyny contradict the prohibition of polygyny mostly on the ground that the constitution has also provided Article 25 which ensures that every citizen freedom to profess, practice and propagate their own religion.
Nevertheless, it was stated in the case law Khursheed Ahmad Khan v. State of U. P. 24 by the Supreme court that Article 25 protects the right to practice, propagate and profess religious faith and this does not include the conservation of any practices within such religion that violates public order and morality. It is the first time judiciary have outlawed such practice yet polygamy could not be banned in totality since polygyny is still recognized under Muslim personal laws. It is intelligibly pointed out by the respected judiciary that such practices are violative of the fundamental rights and shall not be upheld as righteous.
Polygyny is not a mandatory custom among Muslims; therefore, it is imperative to abolish such practice since it is directly affecting and transgressing Muslim women’s rights Muslim women shall not be discriminated solely because they were born as a woman or because they were born as a Muslim. Permission of
22 A.I.R. 1984 S.C. 882.
23 Abhay D Sharma, Practices of Polygamy under Muslim Law in India, LEGAL SERVICE INDIA ,
https://www.legalserviceindia.com/legal/article-4909-practices-of-polygamy-under-muslim-law-inindia.html#google_vignette (Accessed on September 20, 2024)
24 (2015) 8 SCC 439
polygyny is a violation of the Muslim women’s fundamental rights. The heartless conservative practice of instant triple talaq was banned since it infringed the fundamental rights enumerated in the constitution. Therefore, it is high time that discriminatory practice such as polygyny should also be outlawed under the same grounds. Despite these challenges, many Muslim women in India are emerging as vocal advocates for their rights, questioning the traditional norms surrounding polygyny. Organizations such as the All India Muslim Personal Law Board (AIMPLB) and various women's rights groups have been instrumental in initiating dialogues on reforming Muslim personal laws to ensure greater parity for women. 25Muslim women's activism in India has also garnered attention from broader feminist discourses, emphasizing the need for inclusive and intersectional approaches to women’s rights.
Many advocate for a re-evaluation of polygynous practices within Islamic jurisprudence to align with contemporary understandings of gender equality and human rights. 26 THE INDIAN PENAL CODE AND CODE OF CRIMINAL PROCEDURE The judiciary has addressed the issue of polygyny on various grounds. In the case of Mohd. Ahmed Khan v. Shah Bano Begum27, the Supreme Court upheld the right of a divorced Muslim woman to maintenance under Section125 of the Criminal Procedure Code, emphasizing that personal laws must comply with the broader principles of equity and justice The courts have also observed that the practice of polygyny could potentially infringe upon women's rights and equality.
Some judgments have suggested a philosophical shift toward gender equality, emphasizing that personal laws must not violate the fundamental rights guaranteed by the Constitution of India In recent years, there has been discussion around reforming personal laws to respond to contemporary societal norms. The judiciary has often called for a re-examination of these practices, particularly in situations that may lead to the exploitation of women. The courts have recognized that while polygyny is legally permissible, the social acceptability of this practice is diminishing, with an increasing emphasis on monogamous marriages in urban settings among Muslims. In 2021, a Kerala High Court decision noted that the right to marry multiple times depends on the individual circumstances and the ability to comply with the 25All India Muslim Personal Law Board (AIMPLB). (2021).
"Statement on Women’s Rights in Marriage. " 26 Rahman, F. (2022). "Intersectional Feminism and Muslim Women’s Rights in India. " *Feminist Review*.
27 (1985) 2 SCC 556
requirements of fairness and equal treatment, highlighting a nuanced approach to the practice of polygyny.
CONCLUSION
Polygyny poses a complex challenge within the broader framework of women's rights in India, particularly for Muslim women. As feminist perspectives reveal, the practice often leads to significant transgressions of women's rights and agency, perpetuating systemic inequalities. While legal reforms and social awareness are essential steps towards empowering Muslim women, it is equally crucial to engage in dialogue that respects religious beliefs while advocating for gender equality. Ultimately, the path towards equality may require reimagining patriarchal practices and promoting a more equitable interpretation of faith that upholds the dignity and rights of all women. Evolution of the society is bound to happen and it is necessary that society open their door for women and accept women as equal human beings who deserve the same opportunity as that of a man.
Polygynous marriages do not contribute to a healthy family lifestyle and it initiates rifts among the wives thereby deteriorating the women’s mental health and inhibiting mental agony, all for the sake of the husband. It is evident that polygamy was not originally part of the Islamic framework; rather, it was a pre-existing practice that has been misinterpreted and adapted over centuries to align with patriarchal societal norms. An analysis reveals that many Islamic nations have restricted or advocated form of monogamy, demonstrating a departure from traditional interpretations. These countries have achieved this through careful legal manoeuvring, such as limiting the jurisdiction of courts to interpret religious laws, thereby leaving the interpretation primarily to the sovereign authority.
In India, courts have often deferred to Parliament on matters concerning personal laws, asserting limited scrutiny over them. The Law Commission of India has proposed measures to address polygamy, such as stipulating in marriage contracts that it constitutes an offence under Section494 of the Indian Penal Code. The Supreme Court has also affirmed that polygyny is not an essential Islamic practice, opening the door for legislative action to promote monogamy within the Muslim community. Various NGOs are actively working to combat polygamy, proposing measures like implementing civil service conduct rules to deter government employees from engaging in polygamous unions.
However, it must be comprehended that abolition of polygyny is a small step towards attaining a much more balanced society and therefore it is essential to halt such activity to bring about stability and to end the sufferings of Muslim women in polygynous marriages.