Allahabad High Court: In an application filed to quash the chargesheet and summoning orders passed against the accused for the offences under Sections 376, 495, 120-B, 504, 506 of the Penal Code, 1860 (‘IPC’) pending before the court of Additional Chief Judicial Magistrate, the Single Judge Bench of Arun Kumar Singh Deshwal, J. held that if a Muslim male had performed his first marriage in accordance with Mohammedan law, then his second, third, or fourth marriage would not have been considered void. Therefore, the ingredients of Section 494 of the IPC would not have been attracted to the second marriage, except in cases where the second marriage had been declared batil (void) by the Family Court under Section 7 of the Family Court Act or by any competent court, as per the Shariat.
The issue in the present case was whether a Muslim male, who contracts a second marriage during the lifetime of his spouse, would be liable for bigamy under Section 494 IPC.
The Court noted that for Section 494 of the IPC to have applied, it was essential that the first spouse was alive at the time of the second marriage and that the second marriage was legally void. The Court also highlighted that even if a second marriage had been contracted during the lifetime of a spouse, the ingredients of Section 494 would not have been attracted unless the second marriage was legally void.
The Court observed that, as per Section 2 of the Shariat Act, the validity of a marriage between two Muslims (male and female) is to be determined in accordance with Muslim Personal Law (Shariat). Under Muslim law, marriage (nikah) is regarded as a civil contract entered by two individuals of the opposite sex for the purposes of mutual enjoyment and the legitimization of offspring. The Islamic concept of marriage stands in contrast to the Hindu view, where marriage is considered a sacred sacrament (samskara) rather than a mere civil contract. The Court further noted that the purpose of marriage in Islam extends beyond procreation to include companionship and mutual satisfaction.
The Court noted that the concept of Muslim law was founded on the principles of Shariat. As traditionally interpreted and applied in India, Muslim law permits a man to contract more than one marriage during the subsistence of an existing one, provided that he is capable of doing justice between co-wives, a condition precedent under the law. The Court emphasised that even under Muslim law, the right to enter multiple marriages was not an unconditional privilege conferred upon the husband.
The Court further highlighted that the Quran permits polygamy for just and fair reasons, but in modern times, this provision is often misused for selfish purposes. Notably, polygamy is mentioned in the Quran only once, and even then, it is subject to strict conditions. The historical context behind this allowance was significant: during a period of early Islamic history, many women were widowed and children orphaned due to tribal conflicts and battles, particularly those that occurred while defending the nascent Islamic community in Medina. It was in these exceptional circumstances that the Quran permitted conditional polygamy as a means to protect orphans and their mothers from exploitation. The Quran first directs men to care for orphans and only suggests marriage to widowed mothers if the men believe they cannot fairly safeguard the orphans’ interests while remaining uninvolved. Even then, permission is conditional, any such marriage must be carried out with the assurance of equal and just treatment of all wives and their families.
The Court concluded that a second marriage during the lifetime of a spouse was permissible under Mohammedan Law, but only subject to certain conditions. Therefore, if a Muslim man had contracted a second marriage in accordance with Muslim Personal Law while his first wife was still living and provided that the first marriage had also been validly contracted under Muslim Law, the second marriage would have been considered legally valid. However, the Court noted that such a second marriage could still have been declared batil (void) under Mohammedan Law if it had violated essential conditions. Unless and until such a declaration had been made, the second marriage between two Muslims (male and female) was to be deemed valid.
The Court noted that although Muslim law did not prohibit a Muslim male from contracting a second marriage during the lifetime of his first wife, it strictly prohibited a Muslim woman from marrying again during the lifetime of her husband. Such a marriage by a woman was considered batil (void) under Mohammedan law, and she would be liable to prosecution under Section 494 of the IPC.
The Court highlighted that a second marriage contracted by a Muslim male is valid under Shariat law. However, in certain circumstances, such a marriage may be considered batil (void), particularly where it is performed within the prohibited degrees of relationship as defined under Muslim personal law. The Court raised an important question, who has the authority to declare a second marriage batil under Mohammedan law?
The Court explained that Section 2 of the Shariat Act provides that all questions regarding marriage must be decided in accordance with the Shariat. Section 3 of the same Act allows such matters to be determined by a ‘prescribed authority.’ However, the Court noted that the State has not notified any such authority under Section 4 of the Shariat Act. In the absence of a specifically prescribed authority, such questions were traditionally resolved by maulvis or religious scholars. However, with the enactment of the Family Courts Act, 1984, any question relating to the validity of a marriage, including those governed by Muslim personal law, can now be decided by the Family Court. This is by virtue of Explanation (a) and (b) to Section 7 of the Family Courts Act, which grants jurisdiction to adjudicate matters concerning marriage, regardless of the religion of the parties involved.
Thus, the Court concluded that under Mohammedan law, a Muslim male did not have an unfettered right to contract a second marriage unless he had the capacity to treat all wives equally. In view of the above analysis and discussion, the Court held as follows:
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If a Muslim male had performed his first marriage in accordance with Mohammedan law, then his second, third, or fourth marriage would not have been considered void. Therefore, the ingredients of Section 494 of the IPC would not have been attracted to the second marriage, except in cases where the second marriage had been declared batil (void) by the Family Court under Section 7 of the Family Court Act or by any competent court, as per the Shariat.
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If the first marriage of a person had been performed under the Special Marriage Act, 1954, the Foreign Marriage Act, 1969, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, or the Hindu Marriage Act, 1955, and the individual later performed a second marriage under Mohammedan law after converting to Islam, the second marriage would have been void. In such a case, an offence under Section 494 of the IPC would have been attracted.
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The Family Court also had jurisdiction under Section 7 of the Family Courts Act to decide the validity of a Muslim marriage performed in accordance with Muslim Personal Law.
The Court further observed that Article 25 of the Constitution of India guaranteed religious freedom, including the right to profess, practice, and propagate one’s religion. However, this right was subject to public order, morality, health, and the other provisions of Part III of the Constitution. Therefore, religious liberty under Article 25 was not absolute and could have been regulated by the State.
The Court stated that although the Muslim Personal Law (Shariat) Application Act, 1937 declared that issues among Muslims, as mentioned in Section 2 of the Act, should be decided according to Muslim Personal Law, Parliament had enacted the following laws in the exercise of its regulatory power for the welfare of Muslim women:
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The Muslim Women (Protection of Rights on Divorce) Act, 1986
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The Muslim Women (Protection of Rights on Marriage) Act, 2019
Upon reviewing several provisions of Muslim law, the Court observed that Islam permits more than one marriage only under certain circumstances and conditions. However, this permission was often misused, even in contradiction to the mandates of Muslim law as outlined in the Quranic verses referenced above. Consequently, the Court concurred with the suggestions made in Sarla Mudgal v. Union of India, (1995) 3 SCC 635, Lily Thomas v Union of India, (2000) 6 SCC 224, and Jafar Abbas Rasoolmohammad Merchant v. State of Gujarat, 2015 SCC OnLine Guj 5552, regarding the enactment of a Uniform Civil Code in accordance with the mandate of Article 44 of the Constitution of India. The Court emphasized that this issue needs to be considered by the legislature.
Coming back to the controversy at hand, the Court held that from the perusal of the statement of wife it was clear that she had admitted that the husband had contracted a second marriage with her, and both parties were Muslims. Therefore, the second marriage was deemed valid. As a result, the offences under Section 376 of the IPC, as well as Section 495 read with Section 120-B of the IPC, were not made out against the accused husband.
Noting that the matter required further consideration, the Court issued a notice to the wife returnable at an early date and directed the case to be listed on 26-05-2025.
[Furkan v. State of UP, Application under Section 528 BNSS No. 14448 of 2025, decided on 08-05-2025]
Advocates who appeared in this case:
Counsel for Applicant:– Alok Kumar Pandey,Prashant Kumar,Susheel Kumar Pandey
Counsel for Opposite Party:– G.A
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