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Blow to muslim personal law?
By Syed Ubaidur Rahman

The recent Supreme Court ruling is sure to kick another controversy. In a bid to interpret the Muslim marriage law, the apex court has ruled that plurality of marriages is not ‘unconditionally’ conferred upon the Muslim husband. The Supreme Court ruling has said, inter alia, that it would be doing injustice to the Islamic law to accept that a Hindu convert to Islam is entitled to practice ‘bigamy’ even as his first marriage under the Hindu Marriage Act continues. 

According to the Hindu Marriage Act, ‘bigamy’ is an offence which carries a maximum seven years jail term and fine. Section 17 of the Act is clear in covering Hindu husbands resorting to Islam in order to enter into another marriage. 

A Supreme Court bench, comprising of Justice S Saghir Ahmad and Justice RP Sethi, has ruled that such violators cannot plead that the second marriage should not be made subject of prosecution under section 404 of the Indian Penal Code (IPC). Holding that the second marriage by a Hindu convert to Islam while his first marriage was subsisting would be void, the court said , ‘Islam, which is a pious, progressive and respected religion with rational outlook, cannot be given a narrow concept as has been done by the violators of the law. 

Following the Sarla Mudgal case verdict in 1995, the petition had raised several issues, when the court had also desired that the central government should take sincere steps to enact a ‘common civil code’ in the country. The petitioners also contended that the judgement was contrary to the fundamental rights guaranteed by the Constitution.

The Supreme Court bench has also said that the judgement of Justice Kuldeep Singh in 1995 was not in violation of the freedom of conscience and free profession, practice and propagation of religion.’ The court added that ‘We deem it proper to reiterate that this court had not issued any direction for codification of the code and the judges constituting the different benches had only expressed their views in the fact and circumstances of those cases.’ 

The Milli Gazette asked Maulana Rafeeq Qasmi of the Jamaat-e-Islami Hind as to what the ruling amounted? He said that it is in total contradiction to the Constitution. He added that, if a person changes his religion, everything automatically changes with it. If his religion does not apply to him after his conversion, how his earlier personal law will apply to him? He further said that all Muslim organizations including Jamaat-e-Islami Hind will abide by whatever is decided by the Muslim Personal Law Board (MPLB).

Maulana Fuzail Ahmad Qasmi, general secretary of the Markazi Jamiat Ulama-e Hind, was more forthcoming. The Maulana said that this verdict contradicts the Indian Constitution and it is an open interference in the personal and religious freedoms of the people. He also raised a question: why this ruling targets Muslims only? Supreme Court lawyer, Mushtaq Ahmad Alig, told the MG that this ruling cannot be challenged in the Supreme Court as the verdict was in response to the review petition of another ruling of the apex court in 1995 and this bench was constituted in response to the review petition of that ruling. When asked as to what can be done in this matter he said that only Parliament can change this order by passing a law as the Rajiv Gandhi government did in the Shah Bano case. 

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