PIL in Supreme Court Challenging Constitutional Validity of Bigamy

A writ petition filed by five individuals through advocate Vishnu Shankar Jain seeks an order from the Supreme Court of India, declaring the practice of bigamy as unconstitutional, discriminatory, and oppressive towards women belonging to the Muslim community.  

Plea seeks the Court to declare bigamy among Muslim men as unconstitutional and discriminatory  

The Petitioner moved the Supreme Court on the ground that, it’s discriminatory and unconstitutional to allow the practice of bigamy to a particular religious community while the same is an offence for other religious community. Also, the Petitioner argued that Section 2 of Muslim Personal Law (Shariat) Application Act,1937  and Section 494 of Indian Penal Code (IPC) both of which allows Muslim men to solemnize marriage with more than one wife while her first wife is alive is arbitrary and should be declared unconstitutional.  

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine’: Section 494 of IPC 

Relying upon this provisions, the petitioner submitted before the court that this particular section safeguards bigamy 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. Also, State can’t Codify criminal law in such a way that it provokes discrimination by making an act punishable for one while enjoyable for other and therefore this section is discriminatory on the basis of religion which is per se in violation of fundamental rights guaranteed under section Article 14 and 15(1) of Indian constitution. 

Women have the right to eliminate gender-based discrimination, says the petition

Further, referring to the 1996 Supreme Court's judgment in C Masilamani Mudaliar & Ors. Vs. Idol of Sri Swaminathswami Thirukoil case the petitioner states that women have the right to eliminate gender-based discrimination and they have the right to equality of status and opportunity which is also a part of the Basic Structure doctrine. 

The plea also challenged  Section 2 of the Muslim Personal Law (Shariat) Application Act,1937 for violation of Article 14, as it makes Sharia law applicable to Muslim marriages and divorce. 

The plea at the end seeks a declaration that the practice of bigamy is irrational, illogical, discriminatory and oppressive for women and ultra vires Articles 14 and 15(1) of the Indian Constitution.