Assam can enact law to ban polygamy, says expert panel | India News


NEW DELHI: The Assam government can proceed to enact a law prohibiting polygamy in the state, said a retired HC judge-led expert committee while concluding that the non-mandatory custom of Muslim men marrying up to four women is not an essential religious practice in Islam.

“It is the considered and unanimous opinion of all the members of the expert committee that the state of Assam has the legislative competence to enact a law to end polygamy, subject to the provisions of Article 254 with respect to the Doctrine of Repugnancy,” said the report submitted Sunday to CM Himanta Biswa Sarma.

The issue of repugnancy arose because the Shariat Act,1937, a pre-Constitution legislation governing Muslim marriages and divorces, is a central law. It is a settled constitutional practice that when a subject is already covered under a central law, then if a state enacts a law on the same issue, in this case polygamy, it would have to be sent to the President for her assent.
The panel said since marriage and divorce fell in the Concurrent List, both the Centre and the state had legislative competence to enact laws on these two issues.

Since the field is occupied by a pre-existing central law, the state-enacted law would be enforceable in its jurisdiction only on receiving the Presidential assent, it said, adding that a legislation has become a necessity as polygamy infringes fundamental rights guaranteed to Muslim women under Articles 14 (right to equality), 15 (non-discrimination on the ground of gender) and 21 (right to life and dignity).
The committee said, “Under Muslim personal law, polygamy is permitted but is not compulsory. It is not in the nature of an essential practice requiring every Muslim man to mandatorily have four wives. Since polygamy is not an essential religious practice under Islam, the enactment of any law prohibiting such practice will not offend Article 25 (right to practice, profess and propagate religion) of the Constitution.”
Polygamy was abolished amongst Hindus, Buddhists and the Sikhs after the enactment of the Hindu Marriage Act, 1955, amongst Christians by the Christian Marriage Act, 1872, and amongst Parsis by the Parsi Marriage and Divorce Act, 1936. However, polygamy continues to be practised by Muslims because of the protection by the Muslim Personal Laws (Shariat) Act 1937.

The committee was careful not to offend sentiments of tribal communities in the state, some of which practise polygamy. Mentioning that the Hindu Marriage Act, 1955, excluded Scheduled Tribes from its ambit, the committee said it “believes that this particular aspect merits consideration from the legislative authority at the appropriate time”.
“The practice of polygamy is mentioned in Surah 4:3 of the Holy Quran from which it is understood that it is permitted but not encouraged,” the committee said and referred to various commentaries on Islamic personal laws. It opined that polygamy is not an essential part of Islam.
Referring to the SC’s repeated suggestions to Parliament to act on the directive principles of state policy under Article 44 of the Constitution underscoring the desirability of Uniform Civil Code in judgments in Shah Bano case, Sarla Mudgal case and many others, the committee said the state while sending the law banning polygamy for Presidential assent, must cite the crux of consistent judicial philosophy espoused in these verdicts in favour of UCC.

The panel said since marriage and divorce fell in the Concurrent List, both the Centre and the state had legislative competence to enact laws on these two issues.
Since the field is occupied by a pre-existing central law, the state-enacted law would be enforceable in its jurisdiction only on receiving the Presidential assent, it said, adding that a legislation has become a necessity as polygamy infringes fundamental rights guaranteed to Muslim women under Articles 14 (right to equality), 15 (non-discrimination on the ground of gender) and 21 (right to life and dignity).
The committee said, “Under Muslim personal law, polygamy is permitted but is not compulsory. It is not in the nature of an essential practice requiring every Muslim man to mandatorily have four wives. Since polygamy is not an essential religious practice under Islam, the enactment of any law prohibiting such practice will not offend Article 25 (right to practice, profess and propagate religion) of the Constitution.” Polygamy was abolished amongst Hindus, Buddhists and the Sikhs after the enactment of the Hindu Marriage Act, 1955, amongst Christians by the Christian Marriage Act, 1872, and amongst Parsis by the Parsi Marriage and Divorce Act, 1936. However, polygamy continues to be practised by Muslims because of the protection by the Muslim Personal Laws (Shariat) Act 1937.
The committee was careful not to offend sentiments of tribal communities in the state, some of which practise polygamy. Mentioning that the Hindu Marriage Act, 1955, excluded Scheduled Tribes from its ambit, the committee said it “believes that this particular aspect merits consideration from the legislative authority at the appropriate time”.

“The practice of polygamy is mentioned in Surah 4:3 of the Holy Quran from which it is understood that it is permitted but not encouraged,” the committee said and referred to various commentaries on Islamic personal laws. It opined that polygamy is not an essential part of Islam.
Referring to the SC’s repeated suggestions to Parliament to act on the directive principles of state policy under Article 44 of the Constitution underscoring the desirability of Uniform Civil Code in judgments in Shah Bano case, Sarla Mudgal case and many others, the committee said the state while sending the law banning polygamy for Presidential assent, must cite the crux of consistent judicial philosophy espoused in these verdicts in favour of UCC.





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