A petition has been filed in the Supreme Court seeking a declaration that the practice of bigamy is unconstitutional for all religions, oppressive towards women and opposed to equality.
The petition has been filed by five individuals through advocate Vishnu Shankar Jain under Article 32 of the Constitution of India to declare that bigamy has been made applicable in India by Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 is ultra vires to Article 14 of the Constitution of India and by virtue of Article 13(1) of the Constitution.
According to the petition, “The second marriage solemnised by a Hindu, Christian or Parsi during the lifetime of his spouse would be punishable under Section 494 of IPC but at the same time such marriage is not punishable if contacted by a Muslim. Therefore, Section 494 is making discrimination only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”
Section 494 protects bigamous marriage among Muslim men since their personal law gives sanction for such marriages and it is the Muslim personal law which governs Muslims in matters of marriage and divorce due to Section 2 of the Muslim Personal Law (Shariat) Application Act,1937, claimed the petitioner.
“The Muslim Law even though permits male persons to have four wives at the time but at the same time para 256 (as per Mulla Muhammdan Law) forbids the female to contact another during the lifetime of her husband,” the plea reads.
The petitioners alleged that Section 494 discriminates “only on the basis of religion, which is per se in violation of Article 14 and 15(1) of the Constitution of India.”
“Penal action cannot be differentiated on the basis of religious practice and penal law has to be made applicable uniformly having no relation with personal law applicable to the offender,” the petition states.