Legality of Second Marriage Under Muslim Law

Index
1. Introduction
2. Basis for Second Marriage
3. Conditions for Second Wife
4. Legal Framework in India
5. Indian Penal Code 1860
6. Special Marriage Act 1954
7. Limitations on Second Marriage
8. Muslim Polygamy Rights
9. Sharia Requirements
10. Sharia Implications
11. First Wife’s Rights
12. Legal Consequences
13. Recent Judgements
14. Conclusion
15. FAQs on Second Marriage in Islam

Introduction

In India, where diversity is valued in all phases of life and where different communities have unique marriage laws. One such community with its own marriage-related regulations is the Muslim community. Marriage, also known as “Sunat,” is a civil vow between a man and a woman.

According to the Muslim Personal Law (Shariat) Application Act, 1937, which represents the legal status of second marriage for Muslims in India, states that a Muslim man can marry up to four women without having to provide any reason.   

However, there are several limitations and requirements in this practice such as equal maintenance and treatment for each wife and kid from each marriage.

Though polygamy is allowed by the law in India, Muslims who practice it are frequently questioned by society and are called for reformation as people care about women’s welfare and gender equality.

This blog explores the legality of second marriages under Muslim law in India detailing the key aspects and implications, as Muslim personal law is totally based on Islamic principles which govern marriage, divorce and the transfer of assets among family-related issues. 

In order to properly understand the legality of second marriages within this context, it is necessary to examine both religious guidelines and the law of Indian legal provisions.

Basis for Second Marriage under Muslim Law

The Muslim Personal Law(Shariat) in India governs marriage among Muslims on the basis of Islamic teaching. According to Islamic law, a Muslim man can marry up to four wives but this comes along with certain conditions.

1. Quranic Guidance:

Under Muslim law, a second marriage is permissible from the Holy Quran.

Surah An-Nisa (4:3) states: 

“If you fear that you might not treat the orphan and woman fairly, then marry the women that seem good to you: two, three or four. If not, then marry one, or marry   from among those whom your right hand possesses.”

These verses allow a Muslim man to marry four wives if he is in a position to provide equal treatment and fairness for each wife and kids. It is the principle of justice that allows polygamy in Islam.

2. Sharia Law:

Sharia allows a Muslim man to keep many wives. However, it does indicate that each wife is entitled to equality and honour and the husband should address the financial, emotional and social needs of all his wives equally.

3. History of Islam:

In the early Islamic era, polygamy was not a personal choice but often a social necessity. Many women used to become widows in several wars and tribal conflicts, leaving behind children who became orphans. Polygamy was resorted to give protection to society. It is still continuing under the guidance of the Quran.

4. Colonial Impact:

During the colonial period, British rulers in India codified certain aspects of Muslim personal law. This codification sometimes led to a rigid interpretation of laws that were previously more flexible and adaptive to individual circumstances.

5. Modern Interpretations:

In contemporary times, debates around second marriage and polygamy in Muslim law have become intertwined with broader discussions on gender equality, human rights, and personal freedoms. Modern legal interpretations often strive to balance traditional Islamic principles with contemporary social norms and legal standards.

Conditions to Marry a Second Wife in Islam

• The husband should provide every necessary and financial needs to every wife equally, like food, clothes, house and other daily expenses.

One must be financially capable of marrying more than one wife, as highlighted by Prophet Muhammad himself.

• The husband ought to divide his time equally to each of his wives, this makes sure that every wife gets enough attention and companionship.
• A husband should not be biased or show preference for one wife over another but should be fair to all.
• Consent of existing wife/wives before marrying another woman. 

Legal Framework in India for Second Marriage in Islam 

In India, Muslims have personal laws in addition to the general law of the country. Hence the practice of taking a second wife is governed by both Islamic law and Indian judicial decisions.

1. The Marriage and Divorce Acts: 

The law is believed to be the principal regulator of the legal provisions concerning marriage including second marriages, is the Muslim Personal Law (Shariat) Application Act, 1937. This covers marriage as an institution among Muslims, along with divorce and distribution of assets. Other than this, the Indian Constitution gives personal freedom to practice our own religion, which also includes the right to marry according to our own religious customs.

2. Judicial Interpretation: 

Indian courts have held the authorisation of polygamous marriages, finding its legality within Muslim Personal Law, but they also gave equal importance to the fact that the practice needs to be exercised so as to achieve a balance in terms of equity and justice being served. The Supreme Court of India states that all the values and equality are to be satisfied.

The Indian Penal Code of 1860

Section 494 of IPC : Remarrying when the first wife is still alive.

It deals with the offence related to bigamy, also known as second marriage, while the first wife is still alive.

1. Who can be charged?

Hindus, Christians, Sikhs, Jains are all subjected to this law. The consequence of being a bigamist is jail time extending to seven years, coupled with a fine. However, Muslim males have not been affected by this law as they can wed four women simultaneously in accordance with the Muslim Personal Law Application Act of 1937.

2. In the context of Muslim personal law:

As long as they treat each of their wives equally and carry out their obligations to them, Muslim males can marry four different ladies at the same time. This is legally recognised in Muslim societies and is not considered to be bigamy. However, it does not apply to Muslim women. A Muslim woman is not allowed to marry anyone else as long as her husband is alive; otherwise, she will break Section 494 of IPC and might find herself in trouble with the law.

Section 495 of IPC: Remarrying with Concealment of Former Marriage

It addresses the offence of concealing or hiding a previous marriage when entering into the next marriage.

1. Who can be charged?

Men and Women of every Religion can be charged under this Law. Anyone being guilty of this offence will be imprisoned for ten years and fined.

2. In the context of Muslim personal law:

If a Muslim man marries another woman without telling her about his previous marriage or marriages, he can be charged under the sanctions of bigamy under Section 495 of the IPC. 

Section 496 of IPC : Fraudulent Intention

It addresses the offence of someone purposely misleading people into thinking they are legally married when they are not. This can involve creating a fake wedding ceremony or forging documents related to marriage. Fraudulent Intention

1. Who can be charged?

Anyone marrying and knowing that such marriage is to be void or not legal and still knowingly goes through the form of a marriage ceremony shall be punished with imprisonment for a maximum of seven years and a fine.

2. In the context of Muslim personal law:

Marriages entered through deception or fraud are regarded as null and void by Islamic law, they are referred to as “Batil Nikah” or invalid weddings.

The Special Marriage Act, 1954

Act 43 of 1954

According to the Special Marriage Act in 1954 by the Indian Parliament, marriages between individuals of different religions or legally recognised castes are legal. This applies to all residents of India, including Muslims, Christians, Sikhs, Jains, and Buddhists.

It also gives the option to register weddings for official recognition.

Section 4: Conditions Relating to Solemnisation of Special Marriage Act, 1954

This section states the conditions under which a marriage can be ceremoniously pronounced. The important conditions are as under:

• Neither marrying Party should have a spouse living.
• The age of a Muslim man should be at least 21 years old and the age of a Muslim woman should be at least 18 years old.
• Both marrying parties should be mentally healthy so that they are capable of making their own decisions.
• Both marrying parties should be citizens of India.
• The parties shouldn’t be within the prohibited measure of relations as prescribed under their law. 
• The custom should have allowed the marriage.

Section 5: Legal written Notice of Special Marriage Act, 1954

It is stated in this part dealing with jurisdiction that any couple intending to marry under this Act must inform the relevant Marriage Officer of their district in writing at least 30 days before their proposed wedding date.

The marriage officer shall also send a copy of the notice to the marriage officer of the district wherein resides permanently any other party.

Section 7: Objection to the Special Marriage Act of 1954

This allows anyone to raise an objection to the marriage within the period of 30 days after receiving the notice, on any basis as mentioned in the act such as the age limit or strength of the relationship. However, the marriage register has to make a decision after knowing the objection.

Section 8: Procedure to Handle Objection of Special Marriage Act, 1954

This allows us to cover the process of dealing with objections to a proposed marriage. After the investigation of the objection, if the complaint is valid, then the marriage registrar will refuse to register the marriage. If the objection is not reasonable, the marriage is allowed.

Section 11: Declaration by Parties and Witnesses of Special Marriage Act, 1954

This section states that the marriage is officially dissolved only when the parties and the three witnesses sign the declaration in front of the marriage registrar. The declaration should also be signed by the officer as required by the 3rd schedule of the Act.

Section 13: Certificate of Marriage of Special Marriage Act, 1954

After the marriage is legally solemnised, the marriage certificate is entered into the marriage certificate book.

The Implication of SMA for Muslim Second Marriage

According to the Special Marriage Act, of 1954, if a Muslim man marries again without ending his first marriage under SMA, the second marriage would be viewed as void or invalid and the man would be charged under Section 44 of the SMA and Section 494 of the IPC for bigamy.

This act is stated as an anti-bigamy provision.

Limitation for Second Marriage in Islam

In India, Muslim personal law allows a Muslim man to have up to four spouses at the same time. However, there are some limitations and restrictions to managing a second marriage in Islam. These limitations are acquired from Islamic law and are impacted by Indian legal systems and cultural standards. 

For Man 

• A Muslim man can only have four wives at a time, not more. The fifth marriage would be considered irregular and can be cancelled by any party.
• A man can’t marry two women together if they are in a blood-related relationship, such as sisters.
• If the man fears that he can’t treat all his wives fairly, he can’t have more than one wife.

For Woman

• A Muslim woman has to divorce her first husband before remarrying and follow iddat for 3 months before the final Talaq.
• If the husband dies and the woman wishes to marry again, then she has to wait for 4 months of the iddat period.
• If the woman is pregnant during divorce, then the period of iddat is observed after the woman gives birth.

Can a Muslim Man Perform Polygamy?

According to the Law of Islam (Shariat), only when one has enough resources to take care of all four wives equally with regards to emotion, body and money can he marry that number of women. However, it is worthwhile to note that even though polygamy is permitted by Islam in today’s world, it may not be necessary.

• Muslim Personal Law: 

With regard to the above conditions, Muslim personal law allows Muslim males to have multiple husbands. However, failure to treat all wives equally can lead to legal consequences, including divorce or support claims.

• Indian Penal Code, 1860: 

The Indian Penal Code Section 494 refers to the offence of bigamy, which occurs when a person marries again while their partner is still alive. Nevertheless, this section exempts Muslim males from prosecution for bigamy under Muslim personal law and therefore endorses polygamy among Indians who practice Islam.

• Special Marriage Act, 1954: 

The regulation in this Act enables people of any sect to marry under common laws, even Muslims. An individual cannot marry as long as he/she has a spouse living according to this Act. Therefore, if a Muslim man marries more than one wife under this regulation, it would be deemed unlawful and he/she may face legal sanctions.

• Hindu Marriage Act, 1955: 

This regulation is relevant for Hindus, Buddhists, Jains and Sikhs because it places limits on polygamy. If a Muslim man converts to Hinduism and marries another woman while the first wife is still living, he may be liable for prosecution for bigamy under this Act.

Requirements for Sharia

• Number of Wives: 

If he can treat all of them equally, a Muslim man can marry as many as four wives at once, as the Quran puts it.

• Justice and Fair Treatment: 

Equitable treatment of all the wives in terms of financial support, time and love is an obligatory duty that every husband must accept. Without this fair play among them, immoral and other sinful actions may occur.

• Consent: 

Despite the fact that the Quran does not categorically necessitate the primary partner’s approval for a man to take another wife, many academics emphasise it as a duty meant to maintain peace and fairness in the family.

Implications Under Sharia

• Validity of Marriage: 

As per Islamic regulations, if the second marriage violates the rights of the first wife then it cannot be deemed valid.

• Maintenance and Support: 

The first wife has a right to maintenance and support from her husband. In case resources are diverted to assist the second wife, the first wife may pursue legal actions.

• Custody and Inheritance: 

The broadening of a second wife can influence succession rights and children’s guardianship, hence stirring up quarrels and legal battles.

Rights for the First Wives

• Maintenance: 

Husbands are obliged to provide maintenance to their wives, which includes food, clothing, and lodging. This duty expands irrespective of whether the husband takes additional wives. The right to maintenance for the first wife is not affected by subsequent marriages of her husband. If a husband fails to provide support, the wife has the right to sue him.

• Fair Treatment: 

Although Islam allows polygamy under certain conditions, it also emphasises the importance of justice between wives. This is what the Quran states when it says that if a man fears he cannot be fair to his wives, then he should marry only one. Thus, first, spouses have the right to be treated with equity and care by their husbands even if they take more wives.

• Legal Recourse: 

In case any spouse ignores the rights of his first wife he can go to Islamic courts or other relevant legal avenues. Such actions involve seeking divorce, maintenance and alimony claims or disputing the validity of second marriages, which are performed without proper consent or following Sharia laws.

• Consent: 

Before a husband can marry another woman, the consent of his first wife is not necessary in Islam but still, many academics emphasise that consent is a must. This requirement varies with cultural and legal contexts, but sometimes the absence of such consent by the first spouse can invalidate the second marriage or cause problems for the husband legally.

• Divorce: 

Through Islamic means, khula may also be used by a wife who has been neglected or abused by her husband in order to get rid of him legally. Thus, she must give back all the dower or anything else that was not mutually agreed upon for a divorce to proceed with him, according to Khula.

Legal Consequences and Difficulties

• Marriage Validity: 

Since the Muslim personal law allows for polygamy, its Indian counterpart puts limits on it. Section 494 of IPC disapproves the act of marrying again during the lifetime of a partner hence nullifying any subsequent marriage which is not done under the recognised legal framework.

• Maintenance and Inheritance: 

The law governing Muslim women in India referred to as the Muslim Women Act 1986, provides for the welfare and succession rights of women’s spouses. Under various sections of Muslim personal law, polygamous wives are entitled to a share of their husband’s estate according to Sharia however, such distribution may be affected by whether or not he has children from other marriages.

• Criminal Liability: 

Under Section 494 of the IPC, if one participates in a secondary marriage during the lifetime of the primary wife, it can therefore give rise to criminal charges punishable by imprisonment.

• Child Custody: 

Custody disputes involve private laws, and the Guardian and Wards Act, of 1890 is one such law. Courts base their decisions on the well-being of the children while balancing religious and legal principles.

People Also Read: A guide to know about the Child Custody law in India

Recent Judgement for Second Marriage Under Muslim Law

Although a Muslim man’s Second Marriage is Legal according to Muslim Personal Law, there are few recent judgments of the Indian judiciary regarding it.

Karnataka High Court:- 

Second Marriage Under Muslim Law through Legal can be Construed As Cruelty To First Wife: Karnataka High Court

The Karnataka High Court’s Kalaburagi Bench noted that although a Muslim man’s second marriage is legal under Muslim Law, it often ends up causing “enormous cruelty” to the first wife, justifying her Divorce claim.

A Court of Justice Bench  Krishna S Dixit and P. Krishna Bhat explained that cruelty is a very subjective concept and the conduct constituting it is “indefinitely variable”. It stated, 

“Merely because an act is lawful, it doesn’t make it legal or justifiable in married life; for example, of course, subject to all just exceptions, smoking and drinking are not illegal; snoring too, is not; but still, in certain circumstances, they may amount to cruelty to a sensitive spouse; on the same analogy though contracting a second marriage by a Muslim may be lawful, but it causes enormous cruelty to the first wife justifying her claim for divorce.”

Allahabad High Court:-

According to the Allahabad High Court, a Muslim husband could not marry another woman simply for the reason that he wanted to. The court also cited bigamy to be forbidden under the Quran except when it provides that a man shall deal fairly with orphans and treat them with equality.

Latest Muslim Marriage Act:

The 126-member Assam Assembly on August 29, 2024, passed a Bill to make the registration of Muslim marriages and divorces with the government compulsory.

The Assam Muslim Marriages and Divorces Registration Act, 1935, which was passed during the British colonial era, would be superseded by the Assam Compulsory Registration of Muslim Marriages and Divorces Bill, 2024, which Minister Jogen Mohan of Revenue and Disaster Management introduced in the House.

Conclusion

In India, the realm of second marriages is a product of intertwined religious and civil laws as laid down by the Muslim Law. They are permissible in Islam, yet they may present a contrast to the Indian legal system leading to negative repercussions for those concerned. 

This complex interplay calls for comprehensive legal counsel before individuals undertake such marriages since several factors like maintenance, inheritance or child custody could arise. On top of that, documentation and tackling societal bias are fundamental measures that help prevent court cases from sprouting while at the same time protecting everyone’s rights.

Frequently Asked Questions on Second Marriage Under Muslim Law

Q.1. Can a Muslim man Marry more than one woman?

Ans1. Yes, a Muslim man can marry more than one woman, i.e., up to four women, only if he can provide equality to all in financial support, love, and care, as per Islamic law.

Q.2. Is Second Marriage allowed in Islam?

Ans2. Yes, according to the Holy Quran, a second marriage is allowed in Islam only if the husband can provide equal treatment to all his wives.

Q.3. Is a second marriage for Muslims legal in India? 

Ans3. Though bigamy or polygamy is illegal in India through the Special Marriage Act 1954 Muslim men are allowed to have up to 4 wives under Sharia Islamic Law.

Q.4. Can a Muslim remarry without his first wife’s permission?

Ans4. No evidence in either the Quran or Sunnah that says it’s a must to seek permission from the first wife. However, many academics emphasise asking as a duty that is meant to maintain peace and fairness in the family.

Q.5. Can a Muslim woman remarry while her first husband is alive?

Ans5. While Islamic law allows this, it is not allowed for a Muslim woman to have more than one husband at a time. A woman would only remarry if she divorces her first Husband and follows 4 months of iddat period. 

Q.6. What is the ‘iddat’ period, and why is it important? 

Ans6. Iddat’ is the period a female Muslim has to wait before she can remarry after her husband has died or after divorce. This ensures paternity and sufficient time for healing one’s emotions.

Q.7. What rights does the second wife have under Islamic law?

Ans7. All rights granted to the first wife also apply to the second, including equal treatment, respect, and financial assistance. Every wife should receive the same level of support and care from their spouse.

Q.8. What is the impact of a divorce on remarriage?

Ans8. A Muslim man has every right to remarry even after divorcing. A woman is made ready for remarriage in case she is divorced and all other conditions in Islam are met, with her completing the waiting time, called iddah.

Q.9. Does the second wife bring with her any financial burden or imperatives for support?

Ans9. Yes, the husband is obligated to look after his wives and provide all the funds necessary, including house and maintenance. Each wife shall receive her fair share in due quantity and in a justifiable amount.

Q.10. Can I embrace Islam for the purpose of a second marriage?

Ans10. Converting to Islam and contracting a second marriage, by the law itself, would not dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in contravention of the Act and as such, void under Section 494 IPC. Any act that contravenes the mandatory provisions of the law is void.

Q.11. What if the first wife objects to the second marriage?

Ans11. Though the objection of the first wife is not a legal bar in the way of performing the second marriage under Islamic law, yet it is a due respect to her feelings and possible family consequences. The husband must deal with the situation with tact and equity.

Q.12. Can a wife in Islam not allow a second wife?

Ans12. According to the madhhab of Maalik, it is a condition wherein it is stated, for example: if he marries another wife, then she has a choice over what to do, being an acceptable condition. She may leave him in accordance with the woman’s right in such a case.

Q.13. Can I divorce my husband for wanting a second wife in Islam?

Ans13. The best you can do is leave him and appeal to a Qadi. Divorce is the most disliked halal act, but it is halal for a reason. If sharing him with another woman is not wanted by you, then you have a right to leave.

Q.14. Is it haram if a Muslim man marries for a second time in secret?

Ans14. Yes, it is not allowed for a Muslim man to hide his second wife. If he didn’t ask the permission of the first wife while marrying or keeping that second wife a secret, this would be going against the wife’s rights in Islam and hence considered haram.

Q.15. What is the difference in status between the first wife and the second wife in Islam?

Ans15. In Islam, the wife and the second wife have the same rights and must be treated fairly and justly without discrimination by the husband in providing livelihood, love, care, and sharing time.