Abstract:
While polygamy is still practiced in India, particularly under Muslim personal law, there is no specific law regulating the practice of polygamy. The absence of law can negatively impact women’s constitutional rights of equality, non-discrimination, and dignity, as well as violations of their fundamental human rights. Even though the Quran assumes that justice is to be meted out fairly among co-wives (Surah An-Nisa 4:3), the standard is often violated. Many women suffer from economic deprivation, psychological trauma, and social marginalization. As judicial redress is always situational, there is a clear gap in research and need for a common law to safeguard the rights of women from polygamous marriages.
This research paper analyzes the evolution of judicial intervention with respect to women’s rights in Muslim polygamous marriages through some major judicial pronouncements. The study references landmark judgments of the Supreme Court like Mohd. Ahmed Khan v. Shah Bano Begum [(1985) 2 SCC 556] which established the right to claim maintenance beyond iddat; Shayara Bano v. Union of India [(2017) 9 SCC 1] in which triple talaq was declared invalid; and Sarla Mudgal v. Union of India [(1995) 3 SCC 635] where the issue of bigamy-by-conversion was dealt with. The High Court decisions discussed here include Muhammad Shareef C v. State of Kerala [2025 KER 82441] which made it mandatory for a husband to inform the first wife before registering second marriage. The outcomes point to a gradual move toward constitutional morality taking precedence over inequities within personal law, but the largely ad hoc nature of judicial responses continues to limit consistent, system-wide protection. The study concludes with policy recommendations to standardize multi-wife maintenance protocols and introduce judicial training focused on gender-sensitive enforcement, thereby helping align personal laws with India’s secular framework and strengthening protections for women facing marital exploitation.
Keywords: polygamy, Muslim personal law, judicial approach, women’s rights, gender justice
Introduction
Historically, polygamy has been a complicated subject in the Indian judicial and cultural arenas, particularly in respect to Muslim Personal Law. Although various laws regarding marriage practices in India advocate for monogamy, polygamy continues to be recognized as a legitimate practice under Muslim Personal Law that permits a Muslim male to marry four wives according to the conditions set forth in the Qur’an[1]. On the other hand, the authorization offered in the Qur’an is not ultimately unrestricted. Inextricably connected with the need for fairness and justice, it postulates that a husband must furnish his wives with fairness in provision, good company, emotional support and monetary protection. Traditional Islamic legal scholars have always understood these principles as creating a considerable moral and legal duty placed on the shoulders of a husband rather than giving him the right to do wrong[2].
Although there are these regulations that are supposed to ensure implementation of polygamy, the real life is often much more different from the interests of those individuals involved. Nowadays polygamous marriages are entered into without the knowledge about the first wife, thus not allowing the latter to think about the rights and obligations that are the result of this decision. Polygamous marriages introduce many negative consequences for those on whom they affect. In particular, if the subsequent marriages are clandestine or happen informally without any paperwork done, then women cannot seek official maintenance or inheritance from the new husband or receive any rights related to it[3].
India experiences a unique challenge with regard to the legal regulation of polygamy. Unlike various countries with a majority-attributed Muslim population that have incorporated statutory provisions such as compulsory legal permission, pre-consent requirements, financial capability evaluation, or administrative oversight, India predominantly considers the uncodified Muslim law along with interpretations and constitutional adjudications[4]. Thus, courts are becoming the leading authorities in maintaining equilibrium between the fundamental right to freedom of religion and the principles of equality of the sexes and human dignity[5]. Due to the lack of comprehensive legislative measures, the judicial decisions have played a key role in defining the rights and remedies which women can enjoy as a result of polygamous marriages.
The constitutional framework provides the normative foundation for this judicial intervention. Article 14 guarantees equality before the law and equal protection of the laws, Article 15 prohibits discrimination on grounds including sex, and Article 21 has been expansively interpreted to encompass the rights to life, dignity, privacy, autonomy, and personal liberty[6]. It has been through the constitutional guarantees that the approach towards family law has been changed by making it compulsory for the personal law practices to fall within the larger ambit of rights. Article 25 has provided for the freedom to practice, propagates and profess religion but this freedom is made subject to the conditions of public order, morality, health and other provisions of Part III of the Constitution[7] . This means that the Indian constitutional jurisprudence accepts that practices of religions affecting the fundamental rights of women will not escape the judicial scrutiny[8]. The Supreme Court of India has significantly contributed to the development of this constitutional discourse. In the case of Mohd. Ahmed Khan v. Shah Bano Begum, the Court reiterated the duty of a Muslim husband to pay maintenance to his divorced wife as required under Section 125 of the Code of Criminal Procedure, stating that the personal law should not be construed to defeat the very purpose of avoiding homelessness.[9]. The ruling prompted much political and legal discussion, but put the judiciary’s inclination to protect women’s economic rights outside the somewhat rigid parameters of personal law on record. In Sarla Mudgal v. Union of India, the Court then disapproved of the practice of converting to Islam just for the purpose of marrying a second time whilst still married, calling it a misuse of law and a violation of the institution of marriage.[10]. The ruling upheld the concept that converting one’s religion cannot be seen as a means to work around the laws in place to protect the rights of women[11].Constitutionality of personal laws gained further ground in the case of Shayara Bano v. Union of India whereby the Supreme Court abrogated the system of instant talaq, termed as talaq-e-biddat. The case itself was not directly related to the problem of polygamy; however, it was instrumental in establishing the important legal premise that personal laws that do not comply with the classical standards of constitutional review in terms of women’s rights cannot escape constitutional scrutiny simply because they derive from religion.[12].
The recent High Court rulings demonstrate the concern of the judiciary with regard to the safety and protection of women involved in polygamous marriages. In Muhammad Shareef C. v. State of Kerala, the Kerala High Court ordered that the existing wife should receive notice prior to the registration of another marriage, thereby stressing the necessity of fairness in the matrimonial procedure.[13]. Similarly, in the case of Abdurahiman v. Khairunnessa, the Kerala High Court interpreted section 2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939, ruling that a Muslim wife may petition for dissolution of marriage if her husband refuses to treat his other wives equally after remarriage.[14]. The decisions taken by the judiciary establish their efforts to enhance procedural protections and consolidate the moral responsibilities inherent to Islamic law while providing legal relief to women.
Despite these changes in the judiciary, the legal system for polygamy in India continues to be patchy and confusing. There is no system of law or policy in place that will make registration of any new marriages mandatory, specify rules for early announcement of polygamous marriages, safeguard the financial interests of the existing wife, and create standard laws for the fair treatment of co-wives.[15]. Hence, legal protection is frequently dependent on the individual facts of the case thus making the situation uncertain and arbitrary in the implementation of women’s rights. The lack of uniform legal protection continues to put women at highly risk despite the advancements in constitutional law.
Numerous scholarly works have tackled issues related to the constitutionality of Muslim Personal Law, controversies regarding the Uniform Civil Code, and the legality of certain marriage practices, such as triple talaq. On the contrary, not much attention has been given to the systematic doctrinal analysis of the judicial approach to women’s rights in polygamous marriages. Most of the existing literature on the subject has been devoted to constitutional issues or religious reforms, ignoring the growing legal cases concerning issues related to maintenance, equal treatment, matrimonial relief, custody, legitimacy of children, procedural safeguards, and protection from exploitation.[16]. This absence calls for exhaustive doctrinal research aimed at thorough examination of judgments and legal concepts developed in the context of constitutional laws, statutes and personal law. Thus, in this light, the current research provides an insight into doctrinal research into court decisions on women’s rights in polygamous marriages in India. It examines constitutional provisions, statutory policies and court cases in order to assess whether courts have implemented the law and provided women with the necessary protection in polygamous marriages. It is argued in this paper that Indian courts have been gradually improving the remedies regarding maintenance, divorce, procedural justice, legitimacy of children, custody rights and protection against abuse in polygamous unions, however, the lack of a coherent legislative structure leads to inconsistencies and a lack of effective implementation of the law.
[1] The Muslim Personal Law (Shariat) Application Act 1937; The Qur’an, Surah An-Nisa (4:3). See also Tahir Mahmood, Muslim Law in India and Abroad (3rd edn, Universal Law Publishing 2016) 123–126.
[2] The Qur’an, Surah An-Nisa (4:3): ‘But if you fear that you shall not be able to deal justly with them, then marry only one’; see also Muhammad Hashim Kamali, Principles of Islamic Jurisprudence (3rd edn, Islamic Texts Society 2003) 292–294.
[3] Narendra Subramanian, ‘Legal Change and Gender Inequality: The Politics of Personal Law in India’ (2010) 44(1) Law & Society Review 107, 118–120.
[4] Tahir Mahmood, Muslim Personal Law: Role of the State in the Subcontinent (Vikas Publishing House 1977) 42–45; Asghar Ali Engineer, The Rights of Women in Islam (Sterling Publishers 2008) 123–125.
[5]Shayara Bano v Union of India (2017) 9 SCC 1; Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins India 2019) 186–190.
[6] Constitution of India arts 14, 15 and 21; Maneka Gandhi v Union of India (1978) 1 SCC 248; Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[7]Joseph Shine v Union of India (2019) 3 SCC 39; Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[8]Sayara Bano v Union of India (2017) 9 SCC 1; Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.
[9]Mohd Ahmed Khan v Shah Bano Begum (1985) 2 SCC 556. The Supreme Court held that the obligation of maintenance under Section 125 of the Code of Criminal Procedure, 1973, is a statutory obligation independent of personal law and is intended to prevent destitution and vagrancy.
[10]Sarla Mudgal v Union of India (1995) 3 SCC 635. The Supreme Court held that conversion to Islam by a Hindu husband for the purpose of contracting a second marriage without dissolving the first marriage does not invalidate the first marriage and amounts to an offence under Section 494 of the Indian Penal Code, 1860.
[11] John Vallamattom v Union of India (2003) 6 SCC 611; see also Paras Diwan and Peeyushi Diwan, Modern Hindu Law (24th edn, Allahabad Law Agency 2018) 216–218.
[12]Shayara Bano v Union of India (2017) 9 SCC 1. The Supreme Court by majority invalidated the practice of talaq-e-biddat (instant triple talaq), holding that it was arbitrary and violative of constitutional principles.
[13]Muhammad Shareef C v State of Kerala, 2021 SCC OnLine Ker 5132. The Kerala High Court emphasized the importance of transparency and procedural safeguards in the registration of subsequent marriages under Muslim Personal Law.
[14]Abdurahiman v Khairunnessa, 2021 SCC OnLine Ker 2705; Dissolution of Muslim Marriages Act 1939, s 2(viii)(f), which provides a ground for dissolution where the husband fails to treat wives equitably as required under Muslim law.
[15] Law Commission of India, Consultation Paper on Reform of Family Law (31 August 2018) 11–15; Muslim Personal Law (Shariat) Application Act 1937. The Law Commission’s consultation process considered reforms within personal laws, including issues relating to marriage registration, maintenance and gender equality.
[16] Asaf A AFyzee, Outlines of Muhammadan Law (5th edn, Oxford University Press 2008) 109–116; Tahir Mahmood, Muslim Law in India and Abroad (3rd edn, Universal Law Publishing 2016) 123–132.