Historically, India’s Supreme Court has been hesitant to address the constitutionality of Muslim personal law, including of the practice of polygamy. In this post, however, I argue that the Court’s decision in the recent case of Khursheed Ahmad Khan v. State of U.P. (2015) may open the door to challenges to the constitutionality of polygamy. I further analyze some sociopolitical factors that may have facilitated the Court’s emerging openness in this case.
I. The Historical Response to Constitutional Challenges to Muslim Personal Law
Historically, polygamy has been permitted as part of classical Islamic law, and thus within India’s Muslim personal law. The Quran allows a man to have up to four wives, but also underscores that a man realistically cannot treat multiple wives equally. Some scholars have interpreted these verses to mean that a man can only marry multiple women if he can treat them all equally – particularly with respect to their financial position. The contemporary Hanafi school of Islamic law views polygamy as permitted but not required; thus, the school has even allowed the use of contracts between spouses stipulating that the husband cannot take more than one wife.
When faced with challenges to the practice, the Indian Supreme Court has refused numerous times to declare that polygamy is unconstitutional. In Ahmedabad Women Action Group (1997), for instance, the Court dismissed a writ petition asking that laws under which Muslims are allowed to practice polygamy (as well as unilateral ṭalāq – or male-initiated divorce – which favors men over women, and discriminatory inheritance laws) be declared unconstitutional, stating that these matters are for the legislature, not the courts to determine.
Similarly, in Julekhabi v. Union of India, the Indian Supreme Court rejected a 2001 plea by a woman whose husband took a second wife and then divorced her. She was asking that polygamy be declared unconstitutional on the ground it constitutes a denial of equality, personal liberty, and human rights. The Supreme Court again instructed her to approach parliament for a remedy.
The Supreme Court’s reaction to constitutional challenges to polygamy appears to be in line with the Court’s historical hesitance to address the constitutionality of various aspects of Muslim personal law, and its tendency to instead urge that such issues were rightly within the legislature’s purview. In Narasu Appa Mali in 1952, the Bombay High Court actually limited its own ability to address these questions, holding that personal laws are not “laws in force” within the purview of Article 13 of the Constitution, and thus need not satisfy the fundamental rights test. In a surprising move, the Supreme Court reiterated this view in Krishna Singh v. Mathura Ahir in 1980. However, this statement was dicta and thus not considered a formal holding (although it remained persuasive authority at the least).
There have been some inconsistent decisions on this since. In 1992, the Bombay High Court in In Re Amina rejected Narasu Appa, holding that personal law is subject to fundamental rights. Several subsequent Supreme Court cases also point to the fact that Narasu Appa was incorrectly decided.
This legal maneuvering illustrates how the Court is going out of its way to avoid ruling on the constitutionality of personal law. It likely reflects the effects of maintaining a Muslim personal law system within a secular state. Personal law in India has become politicized, thus causing judges to be fearful of substantively altering the system.
Despite avoiding significant questions of constitutionality in light of this unclear precedent, the Court has been willing to alter Muslim personal law through smaller, “piecemeal” changes; for instance, regarding the limitation of unilateral talaq. In this way, the Court has tried to advance the rights of women by slowly “narrowing the gap between the provisions of general law and the personal law.” For more systemic changes, the Court sought for “change in the Muslim personal laws…to come from within the Muslim community” instead.
II. The Khursheed Ahmad Khan Case: Opening the Door?
This historical reluctance of the Indian Supreme Court to weigh in on the constitutionality of Muslim personal law aside, some signs indicate that the Court may be more willing to address that question moving forward. Most clearly, a key example is a recent case in February 2015. A bench of India’s Supreme Court composed of Justices T.S. Thakur and A.K. Goel held in Khursheed Ahmad Khan v. State of U.P. that polygamy was not an ‘integral’ part of the Muslim religion and could therefore be regulated by the state. The case involved a government employee (the appellant) who was found to have violated the U.P. Government Servant Conduct Rules (“the Conduct Rules”) by contracting a second marriage without divorcing his first wife. The government ordered him removed from service for violating the Conduct rules, as he did not take prior permission to contract his second marriage. In his defense, he asserted that he had divorced his first wife, but failed to report this to the government. The High Court found no reason to believe his defense, as his first wife had never been informed of appellant’s second marriage. He appealed, challenging the lower court’s finding of fact, but also asserted that the Conduct Rules violate Article 25 of the Indian Constitution by interfering with his religious freedom – to contract a polygamous marriage. Article 25(1) of the Constitution provides that “[s]ubject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”
In this case, the Supreme Court held that the Conduct Rules do not violate Article 25 of the Constitution. Relying upon a prior Supreme Court precedent, Javed v. State of Haryana (2003), the Court reasoned as follows. First, Article 25 protects religious practice that forms an integral and essential part of the religion. Thus, religious practices that are simply permitted within a religion, but that are not compulsory, are not necessarily protected by Article 25 and may be regulated. Second, Article 25 protects only the religious faith, not practices that may run counter to public order, morality or health. The Court found that, while it is permissible for Muslims to contract four marriages at once, it is not dictated or required by the religion. Thus, it can be regulated or prohibited by legislation that aims to protect public order, morality and health, or to promote social welfare and reform. The Court noted that the Conduct Rules have these aims – particularly to promote monogamy as a social reform – and thus can regulate polygamy, which is not an integral part of the Muslim religion. As a result, it found that the Conduct Rules do not violate Article 25.
Here, the Court has made quite a bold move toward a ruling that polygamy might be unconstitutional. By asserting that polygamy is not protected by Article 25 and thus can be regulated, the Court essentially opened the door to future challenges to the constitutionality of polygamy, as well as for the passage of legislation that attempts to limit polygamy. However, the Court was careful not to explicitly state that polygamy is unconstitutional, in line with its historical hesitancy to rule in such a way.
III. The Sociopolitical Context: Influences on the Khursheed Ahmad Khan Decision
Although it is a recent decision, some commentators have viewed this judgment as a continuation of the Court’s boldness in reforming Muslim personal law that began with the Shah Bano case in 1985, in order to bring that law more closely in line with human rights standards. Yet, it seems likely that this decision will result in considerable backlash. In a prior case in early 2013, an Indian Court ruled that polygamy is not encouraged by the Qurʾān except in certain circumstances, such as the illness of the first wife. The reaction of Muslim scholars and elites was not positive, with some stating that secular justices should not be interpreting Islamic law. This points to the possibility of negative reaction to this case as well.
On the contrary, some major Muslim elites have shown their support for limiting polygamy. For instance, Darul Uloom Deoband (a well-respected seminary which issues online fatwās, or advisory opinions by scholarly experts in Islamic law) issued a fatwā against polygamy, stating that having two wives is permitted in Islam but not accepted within Indian culture. The fatwā further stated that a husband normally cannot treat his multiple wives equally in practice, so it is better to limit to one wife. When asked, Maulana Mufti Arshad Faruqi, the chairman of the Fatwā department, asserted that it is unacceptable for a Muslim to marry multiple wives without a valid reason (something more than minor family disputes), and that if a man cannot maintain all his wives equally, the marriage is not proper. In addition, Dr. Naeem Hamid, a member of the All India Muslim Personal Law Board – one of the most influential Muslim institutions in India voicing the views of the community on matters of personal law – supported this fatwā, stating that times have changed and the social conditions necessitating the practice are no longer prominent. Finally, a group of reformist Muslim scholars and activists, including the Bharatiya Muslim Mahila Andolan (BMMA) – an activist and rights-based group – in February 2012 had been pushing for a codification of Muslim personal law which restricts polygamy.
Viewed against the backdrop of these moves to limit polygamy, pushed forward by respected elites and reformist groups within India’s Muslim community, the Court’s February decision seems less surprising. Indeed, while some Muslim elites had reacted negatively to a previous case as discussed above, the subsequent support of many Muslim groups seems to indicate on the whole that there may not be such a severe backlash to this decision. While there are no formal mechanisms by which the Indian Supreme Court receives or considers the views of members of the Muslim community, the Court does not exist in a vacuum. The fact that some major Muslim institutions and activist groups have spoken out in favor of restricting polygamy – and thus the possibility of less backlash – may have made it more likely that the Court was willing to open the door to further challenges to its constitutionality.
In addition, this outcome was possible as it was an indirect challenge to the constitutionality of the Conduct Rules; the Court may have refused if directly asked whether polygamy was constitutional. Regardless of the factors influencing the decision, the Court’s decision in Khursheed Ahmad Khan may be a sign that the Court is opening up and more willing to confront the constitutionality of certain issues within Muslim personal laws, rather than leaving them to the legislature.
 Khursheed Ahmad Khan v. State of U.P. & Ors, Civil Appeal No. 1662 of 2015. (Note, has not been reported in a formal reporter yet).
 Quran 4:3.
 Quran 4:129.
 See, e.g. Abu Ameenah Bilal Philips & Jamila Jones, Polygamy in Islam 45 (2005). See also Ingrid Nicolau, Women’s Rights in Islam, 6 Contemp. Readings L. & Soc. Just. 711, 714–15.
 Rachel Jones, Polygyny in Islam, 1 Macalester Islam J. 61, 68 (2006). See also Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate 91 (1992). Indeed, by interpreting verse 4:3 by employing qiyas, Tunisia has actually gone so far as to outlaw polygamy altogether. See Mohammad A. Syed, The Position of Women in Islam: A Progressive View 44 (2004).
 Ahmedabad Women’s Action Group v. The Union of India, (1997) 3 S.C.C. 573, 574–75.
 See Sylvia Vatuk, The Application of Muslim Personal Law in India: A System of Legal Pluralism in Action, in Adjudicating Family Law in Muslim Courts 48, 57 (Elisa Giunchi ed., 2014).
 Sri Krishna Singh v. Mathura Ahir and Ors, 1980 AIR 707.
 In re Amina, AIR 1992 Bom 214, 219.
 Vrinda Narain, Reclaiming the Nation: Muslim Women and the Law in India 102 (2008).
 Colin Gonsalves, Kaliyug: The Decline of Human Rights Law in the Period of Globalisation 254 (2011).
 Id. See also Yuksel Sezgin, Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt and India 193 (2013).
 Id. at 189.
 Id. at 193.
 Id. at 189.
 Khan v. State of U.P., Civil Appeal No. 1662 of 2015.
 Id. at ¶ 4.
 Id. at ¶ 5.
 Id. at ¶ 6.
 Id. at ¶ 7.
 India Const. § 25(1).
 Khan v. State of U.P., Civil Appeal No. 1662 of 2015, at ¶ 14.
 See Faizan Mustafa, Three is a Crowd, Daily Kashmir Images (Mar. 18, 2015), http://www.dailykashmirimages.com/news-three-is-a-crowd-74615.aspx.
 Polygamy Ruling Divides India Muslims, OnIslam (Jan. 03, 2013), http://www.onislam.net/english/news/asia-pacific/460727-polygamy-ruling-divides-india-muslims.html.
 Piyush Srivastava, Darul Uloom Deoband Advises Against Multiple Marriages, India Today (Apr. 12, 2012), http://indiatoday.intoday.in/story/deoband-advises-against-multiple-marriages/1/184174.html. See also Piyush Srivastava, Diktats of Darul Uloom Issue a Fatwa Against Polygamy, Daily Mail (Apr. 12, 2012), http://www.dailymail.co.uk/indiahome/indianews/article-2128967/Diktats-Darul-issue-fatwa-polygamy.html.
 Note that despite being a major institution, many Indian Muslims – especially Muslim women’s rights activists – feel the institution does not represent them. It is largely composed of male scholars and clerics, leading to the formation of the alternative All India Muslim Women’s Personal Law Board in 2005. See Nilanjana S. Roy, Muslim Women in India Seek Gender Equality in Marriage, New York Times (Apr. 24, 2012), http://www.nytimes.com/2012/04/25/world/asia/25iht-letter25.html.
 See Srivastava, supra note 24.
 Mohammed Wajihuddin, Muslim Scholars Seek Triple Talaq Ban, Tab on Polygamy, Times of India (Feb. 5, 2012), http://timesofindia.indiatimes.com/india/Muslim-scholars-seek-triple-talaq-ban-tab-on-polygamy/articleshow/11761892.cms. Draft Muslim Personal Law Seeks to End Polygamy, Whimsical Talaq, DNA India (Jun. 19, 2014), http://www.dnaindia.com/mumbai/report-draft-muslim-personal-law-seeks-to-end-polygamy-whimsical-talaq-1996512.