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THE RELEVANCY OF POLYGAMY UNDER MUSLIM LAW IN PRESENT SCENARIO
Polygamy has been a prominent feature in different communities since ancient times. The custom of polygamy is to have more than one wife at a time. The term 'polygamy' includes both 'polygyny' (a man who takes multiple wives) and 'polyandry' (a woman who takes multiple husbands). The scenario has now changed and not all communities are practicing polygamy, but it is limited to Islam that allows at most four women to get married. Although Islam is one of the fastest growing religion, it is the most misunderstood faith in the world because many claim that when it allows polygamy, it is unjust to women.
The concept of polygamy came into the picture in the seventh century to consider the issue of taking care of a large number of widows and orphans left without husbands and fathers after the battle of Uhud near Medina between the early Muslims and the inhabitants of Mecca, in which Muslims suffered defeat and many Muslim men were killed. The concept of polygamy was allowed in this verse because of the greatest concern for the welfare of the women and orphans left behind in the battle.It is appropriate to mention that it is by no means a general license for Muslims to marry more than one woman at present. Besides, it puts us on them to treat the additional spouses justly, which is certainly a difficult task.
The Holy Quaran at Surah AI Nissa 4:129 says, "And it will not be within your power to treat your wives equally fairly, no matter how much you may desire it ..." It is illegal for a married Muslim woman to marry a second time during her first marriage, and such a second marriage is void. Since marriage is a contract in Islam, a girl may enter into a marriage contract , i.e. Nikahnama, that boy may not marry during the stay of that marriage. But this would make the second marriage a breach of the Contract, but still not a ground for making Polygamy void.
It has been pointed out, despite the guarantee of the Constitution; Muslim women are subject to discrimination. There is no protection against arbitrary divorce and second marriage by her husband in the currency of her first marriage, resulting in her denial of dignity and security. It is noted that the matter needs to be considered by that court, since the matter concerns not only political issues but also the fundamental rights of women under Articles 14 , 15 and 21 of the Constitution and international conventions and treaties.
Article 3 and Article 7 of the Universal Declaration of Human Rights provide that everyone has the right to life , liberty and security of persons and is entitled to equal protection of the law without discrimination. Since the adoption of the Universal Declaration of Human Rights, the universality and indivisibility of human rights have been emphasized and it has been specifically acknowledged that women's human rights are part of universal human rights. In 2000, on the grounds that it violates the dignity of women, the United Nations Human Rights Committee considered polygamy to be the destruction of the International Covenant on Civil and Political Rights, which is internationally binding, and recommended that it be made illegal in all States. It is well recognized in international law that polygamy has a critical impact on the dignity and value of women. Examining the circumstances and arguments set out in various cases, it is clear that polygamy is against women's rights and undermines the dignity of women. Discrimination against women is a violation of fundamental rights guaranteed by the constitution of India. Thus, polygamy is not a valid practice, since it violates fundamental rights and discriminates against women.
It has been found that the practice of polygamy is discriminatory in nature and not only violates the fundamental right of women, but also undermines their dignity. In various cases, the courts have repeatedly reiterated that there should be no practice of polygamy as it discriminates against women. It is appropriate to state that, in the case of Javed v. State of Haryana, the Court held that;
“polygamy is injurious to public morals and can be superseded by the State just as practice of ‘Sati’.
