It has to be definitely taken most seriously that none other than the Allahabad High Court which is not only the biggest High Court in India but also the biggest High Court in the world in a most learned, laudable, landmark, logical and latest judgment titled Furkan And 2 Others vs State of UP and Another in Application u/s 528 BNSS No. – 14448 of 2025 that was pronounced as recently as on 08.05.2025 has in a significant observation on the scope of Muslim personal law has underscored clearly that though Islam permitted more than one marriage and allows up to four marriages, this concession is strictly conditional and prone to being ‘widely abused’ in practice and it even went against the mandate of Muslim law.
It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice Arun Kumar Singh Deswal who authored this pragmatic judgment also made it crystal clear that a second marriage performed by a Muslim male during the subsistence of the first marriage is not void under Section 495 IPC. It was also clarified by the Bench that polygamy had been permitted conditionally, by the Quran in early Islamic times for the rehabilitation of widows and orphans after heavy wartime casualties but now the said provision was being misused for ‘selfish purposes’.
It must be brought out here that this was held so during the hearing of an application that had been filed by Furkan who is a Muslim man and who sought to quash the charge-sheet for rape (Section 376 IPC), second marriage with concealment of former marriage (Section 495 IPC), criminal conspiracy (Section 120-B IPC), intentional insult (Section 504 IPC) and criminal intimidation (Section 506 IPC). He and his first wife also sought direction to set aside the cognizance and summoning orders in the criminal case against them pending before the Additional Chief Judicial Magistrate in Moradabad. The High Court did not quash the entire prosecution and reserved judgments on Sections 376 and 495/120-B pending further hearing.
It was also made absolutely clear by the Bench in this leading case that religious freedom under Article 25 of the Constitution does not shield individuals from penal sanction when statutory or Shariat conditions are flouted. The matter will be heard next on week commencing May 26, 2025. The Bench directed no coercive action against appellant but strongly recommended that the laudable suggestion made in cases of Smt Sarla Mudgal, Lily Thomas and Jafar Abbas Rasool Mohammad Merchant (2015) pertaining to the enactment of Uniform Civil Code in pursuance of the mandate of Article 44 of the Constitution of India needs to be considered by the legislature. Very rightly so! It has been pending inordinately since a very long time and definitely we must concede that it now brooks no more delay any longer now and must reach its logical conclusion!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Arun Kumar Singh Deswal of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 2 that:
The present application has been filed to quash the charge-sheet no. 318/2020 dated 08.11.2020 and cognizance and summoning orders passed in Criminal Case No. 17364 of 2021 (State of U.P. Vs. Furkan & others) against the applicants arising out of Case Crime No. 5 of 2020 u/s 376, 495, 120-B, 504, 506 I.P.C., Police Station- Mainathar, District-Moradabad, pending before the court of learned Additional Chief Judicial Magistrate-06, Moradabad.
To put things in perspective, the Bench envisages in para 3 that:
Learned counsel for the applicants has submitted that this fact is admitted by the opposite party no. 2 in her statement recorded u/s 164 Cr.P.C. that applicant no. 1 was already married and this fact was not disclosed to her. Though opposite party no. 2 has admitted that she married the applicant no. 1 after being in a relationship with him, and she has been residing in Delhi. Therefore, being a married wife, no offence u/s 494 I.P.C. is made out because under Mohammedan Law, a muslim man can get married upto 4 times, and it is further submitted that the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the Shariat Act) permits the muslim man to get married more than once then, even after getting a second marriage with the opposite party no. 2, no offence u/s 494 I.P.C. will be made out against him.
Most significantly and so also most forthrightly, the Bench encapsulates in para 19 what constitutes the cornerstone of this notable judgment postulating that, The Quran allows polygamy for a fair reason, but the men use that provision today for a selfish purpose. Polygamy finds mention in Quran only once, and it is about conditional polygamy. There is a historical reason why the Quran allows polygamy. There was a time in history when a large number of women were widowed, and children were orphaned in primitive tribal tussles in Arabs. The Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. It was under such circumstances that the Quran allowed conditional polygamy to protect orphans and their mothers from exploitation.
Do note, the Bench notes in para 20 that:
From the above-quoted verses of the Quran, it is clear that the Quran asks men first consider taking care of the orphans and only when they think they may not be able to do justice to the orphans’ interests while staying in isolation, should they consider marrying their widowed mothers, on the condition that the new family would be dealt with justly on par with the existing one.
As a corollary, the Bench then holds in para 21 that:
From the above discussion, it is clear that second marriage during the lifetime of a living spouse is permissible in Mohammedan Law, but with certain condition. Therefore, if a Muslim man contracts a second marriage as per Muslim Law, during the lifetime of the living spouse then, his second marriage will be a valid marriage subject to the condition that the first marriage was also contracted as per the Muslim Law. The second marriage still can be declared as Batil (void marriage) under the Mohammedan Law but unless such a declaration is made, a second marriage of two Muslims (male and female) would be valid.
Resultantly, the Bench observes in para 29 that:
It is also clear from the above analysis that as per the Mohammedan law, a Muslim male has no unfettered right to get second marriage unless he has the capacity to give equal treatment to all wives. Therefore, in view of the above analysis, as well as discussion, this Court holds:
- If a Muslim male performs his first marriage as per Mohammedan law, then second, third or fourth marriage will not be void. Therefore, ingredients of Section 494 I.P.C. will not be attracted for the second marriage except in those cases where the second marriage was itself declared Batil (void marriage) as per Shariat by the Family Court under Section 7 of the Family Court Act or by any competent court.
- If the first marriage by a person is performed under the Special Marriage Act, 1954, Foreign Marriage Act, 1969, Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, or Hindu Marriage Act, 1955, and he performs a second marriage as per the Mohammedan law after conversion to Islam, then his second marriage will be void, and the offence under Section 494 I.P.C. would be attracted for such marriage.
- The Family Court also has jurisdiction under Section 7 of the Family Court Act to decide the validity of a Muslim marriage performed in accordance with the Muslim Personal Law.
It would be instructive to note that the Bench notes in para 30 stating that, This Court would further like to observe that Article 25 of the Constitution of India gives religious freedom to profess, practice and propagate, which also includes external overt acts of individual as per his religious faith, but this right is subject to public order, morality and health and other provisions of Part-III of the Constitution. Therefore, religious liberty under Article 25 is not unfettered and can be regulated by the State.
Most rationally, it is worth noting that the Bench notes in para 32 pointing out that:
From the perusal of several provisions of Muslim law discussed above, it is also clear that Islam permits more than one marriage only under certain circumstances and with certain conditions, but this permission is widely misused even against the mandate of Muslim law as mentioned in above quoted verses of Quran. Therefore, this Court is also of the view that the suggestion made in Smt. Sarla Mudgal (supra), Lily Thomas (supra) and Jafar Abbas Rasool Mohammad Merchant (supra) regarding enactment of Uniform Civil Code in pursuance of mandate of Article 44 of the Constitution of India needs to be considered by the legislature.
Quite significantly, the Bench holds and directs in para 33 that:
Coming back to the controversy in hand, from the perusal of statement of opposite party no. 2, it is clear that she admitted that applicant no.1 has contracted second marriage with her and both are Muslims, therefore, second marriage is valid, therefore offence u/s 376 I.P.C. as well as 495/120-B I.P.C. are not made out against the applicants.
Further, the Bench acknowledges in para 34 that:
Matter requires consideration.
Furthermore, the Bench directs in para 35 mandating that:
Issue notice to opposite party no. 2 returnable at an early date.
What’s more, the Bench directs in para 36 holding that:
List this case in the week commencing 26.05.2025.
Finally, we see that the Bench then draws the curtains of this notable judgment and concludes by holding in para 37 that:
Till the next date of listing, no coercive action shall be taken against the applicants in the aforesaid case.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
