By- Flavia Agnes

A provocative-ly titled article which appeared in a newspaper last month (No second wife, please by Jyoti Punwani), while highlighting the efforts of a Muslim women’s group, the Bharatiya Muslim Mahila Andolan (BMMA), on finalising the final draft of the new Muslim Marriage and Divorce Act, released on June 18, which makes polygamy illegal, quoted the BMMA co-founder as saying, “This is what the poor, uneducated Muslim women living in ghettos wanted… We played the Devil’s Advocate with them, asking them, wasn’t a second wife necessary if the first couldn’t conceive, for example. Their reply was, ‘No. No second wife. No woman should have to share her husband with another woman.’”

The article said that senior lawyers have pointed out that despite bigamy being an offence, Hindu men continue to take a second wife. And that these women didn’t enjoy the status of a wife, whereas even the fourth wife of a Muslim man had that status.

In a large number of reported cases (around 40 per cent), Hindu husbands deny that the marriage is valid because they have an earlier marriage subsisting and have not obtained a divorce. In D. Velusamy v. D. Patchaiammal, where the woman was awarded maintenance by two lower courts — family court at Madurai and the high court of Madras — the husband filed an appeal in the Supreme Court. Justice Markandey Katju overruled the judgments and called the woman a “mistress” and a “keep” and held that such women are not entitled to maintenance.

After this it has been extremely difficult for Hindu women in bigamous marriages to file for maintenance. This is the major flaw of the Hindu law.

Even after 60 years of the enactment of the Hindu Marriage Act, it is almost impossible to arrive at the conclusion that polygamous tendencies can be controlled by codification. Statistics continue to indicate that bigamy among Hindu men (which includes, Buddhists, Jains, Sikhs and other denominations) is, in fact, higher than it is among Muslims. In 1974, a government survey found Muslims to account for 5.6 per cent of all bigamous marriages, with upper-caste Hindus accounting for 5.8 per cent. The difference may appear to be small but in real terms it is big. The 1971 census records 45.3 crore Hindus and six crore Muslims. Allowing for women and children to make up 65 per cent of each group, as many as one crore Hindu men had more than one wife in 1971, compared to 12 lakh Muslim men. The survey did not take into account instances of extra-marital relationships.

So, if the codified Hindu law could not achieve this, how will the change be brought about by codifying the Muslim law?

Given this fact, what’s not clear is why would poor and marginalised Muslim women trapped in bigamous marriages forego their current status of a “wife”, albeit a wife in a bigamous/polygamous marriage, and face the humiliation of being termed “mistresses”, “concubines” and “keeps”, and be denied the basic right of maintenance?

The argument here is not on morality but on basic right of survival. It appears the suggestion of the BMMA is based on rather naïve, even flawed reasoning. No woman would like to “share her husband”, of course. But what if the woman had been asked, when a man abandons his wife, and she goes to court to claim her right, she will be denied maintenance if the husband proves that she is his “second wife”, an escape mechanism which is not available to a Muslim husband today.

It may be argued that a husband in retaliation can send a talaqnama, along with his reply to the wife’s maintenance application, and thereby deprive the wife of her rights. This argument can be advanced only by those ignorant of law. The Shamim Ara ruling of 2002 outlawed this practice and lay down strict Quranic injunctions which must be followed at the time of pronouncing the talaq, hence the fraudulent practices adopted by lawyers no longer constitute valid talaq. Further, the full bench ruling of the Supreme Court, in the Danial Latifi & Anr v. Union of India, 2001, upheld the Muslim woman’s rights to post-divorce lump sum settlement.

On the other hand, reported cases in law journals bear testimony to the frequency with which Hindu men plead a pre-existing marriage to deny their second wives maintenance. Sympathetic and sensitive judges are constantly groping to find ways in which to secure the rights of Hindu women trapped in such technically invalid marriages. While there are several negative rulings which deny women their rights, the few positive ones need special mention.

In 2005, in Rameshchandra Daga v. Rameshwari Daga, the Supreme Court, while awarding maintenance to a woman whose husband had challenged the validity of their marriage on the ground of previous subsisting marriage, had conceded that despite codification and introduction of monogamy, the ground reality had not changed much and that Hindu marriages, like Muslim marriages, continue to be bigamous. The court had further commented that though such marriages are illegal as per the provisions of the codified Hindu law, they are not “immoral” and hence a financially dependent woman cannot be denied maintenance on this ground.

In 2010, the Supreme Court in Chanmuniya v. Virendra Kumar Singh Kushwaha, upheld the right of women in technically defective marriages by holding that the term “wife” must be given a broad and expansive interpretation. The bench recommended that cases where a man and woman have been living together for a reasonable period of time, should be brought within the scope of Section 125 of the CrPC (Code of Criminal Procedure) and a strict proof of marriage should not be a pre-condition for maintenance so as to fulfil the true spirit and essence of the beneficial provision of maintenance.
In 2013, in Badshah v. Sou. Urmila Badshah Godse, the Supreme Court upheld the right of a Hindu woman who had been duped into a bigamous marriage and thwarted the attempt of her husband to deny her maintenance on this pretext. The judgment emphasised that while dealing with the application of a destitute wife, the court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is enshrined in the Preamble to the Constitution of India. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. The judgment cites the journey from Shah Bano to Shabana Bano, which secures the maintenance rights of Muslim women as a classic example of this trend.

Any attempt to codify the Muslim law to bring in legal monogamy should not end up in subjecting Muslim women to a plight which is similar to that of the Hindu second wife. This is an important concern which needs to be taken on board while suggesting reforms within personal laws.

Right to maintenance, sustenance, protection and residence belong to the realm of “right to life”, within the ambit of Article 21 of our Constitution, which forms the core of our fundamental rights. The aim in reforms must be towards an inclusive realm of rights rather than an exclusive one, which would lead to denial of rights to a section of women, most of whom belong to the marginalised sections of our society.