Polygamy to meet Triple Talaq's fate? Supreme Court to hear challenge to Muslim law

The Supreme Court has sought the Centre's response on petitions challenging polygamy under Muslim personal law. The case revives unresolved questions on equality, religious freedom and legislative reform after the instant Triple Talaq ruling.

Polygamy is back before the Supreme Court, nearly nine years after it struck down instant Triple Talaq. The issue has returned to the spotlight after five activists challenged the legal basis for allowing Muslim men to have more than one wife, prompting the court to seek the Centre's response and ask it to consider ending polygamy for everyone, regardless of religion.

The petition has brought a larger question back into focus — can a practice allowed under Muslim personal law continue when the criminal law prohibits marrying again while an existing marriage is still in force? Under Section 82 of the Bharatiya Nyaya Sanhita, such a second marriage is punishable by up to seven years in prison for non-Muslims.

The petitioners argue that the exemption available under Muslim personal law violates the constitutional guarantee of equality.

The Supreme Court had faced a similar question in the 2017 Triple Talaq case, but had then left polygamy and nikah halala undecided. With the fresh challenge, the court will now examine whether polygamy too should meet the fate of instant Triple Talaq.

Nikah halala refers to the practice in which a divorced Muslim woman must marry another man and consummate that marriage before she can remarry her former husband.

The Supreme Court has sought the Centre's response to a petition challenging the constitutional status of polygamy under Muslim Personal Law. The court has additionally asked the Centre to consider legislative steps to abolish the practice for all citizens, irrespective of religion.

The dispute sets a religion-specific statutory exemption against constitutional equality guarantees. Section 82 of the Bharatiya Nyaya Sanhita, 2023, which replaced Section 494 of the Indian Penal Code, 1860, punishes marrying another person during the subsistence of an existing marriage with imprisonment up to seven years, applying to non-Muslims. Whereas, Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 applies Shariat rules to marriage and dissolution for Muslims, under which polygamy allows a Muslim man up to four wives.

In August 2017, instant Triple Talaq amongst Muslims was deemed unconstitutional by the Supreme Court in Shayara Bano versus Union of India & Others, followed by the Muslim Women (Protection of Rights on Marriage) Act, 2019, making it punishable. Now, the issue arises as, in the same act, BNS, a criminal offence for one set of citizens is a protected personal law entitlement for another.

WHAT IS THE DEMAND OF THE PETITIONERS IN THE POLYGAMY CASE?

The Bharatiya Muslim Mahila Andolan (BMMA), led by co-founders Zakia Soman and Noorjehan Safia Niaz, filed a joint PIL with three other activists in the Supreme Court to criminalise polygamy. Soman, a key petitioner in Shayara Bano, argues that gender equality cannot be achieved until polygamy amongst Muslims is legally penalised under Section 82 of the BNS.

They challenge Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as violating Articles 14, 15 and 16, seeking annulment of exemptions granted to polygamy under Muslim Personal Law.

Currently, Muslim marriages and divorces are not mandatorily registered. Petitioners demand compulsory registration with State authorities so that a second or subsequent marriage with a subsisting marriage can be prevented. In case of violation, they want the first wife and her children to have the first and lasting right to the matrimonial home. Finally, they want the court to direct the Law Commission of India or the Union government to prepare a draft codifying Muslim Personal Law so that marriage, divorce and succession align with constitutional principles of gender equality.

A LOOK AT THE PREVIOUS RULINGS OF THE SUPREME COURT

In Sarla Mudgal and Others versus Union of India (1995), the Supreme Court held that the second marriage of a Hindu husband after converting to Islam, without dissolving the first marriage, is void, prohibiting conversion undertaken purely to marry again.

In Lily Thomas versus Union of India (2000), the court reiterated the Sarla Mudgal position, holding that a second marriage contracted after a feigned conversion to Islam was illegal and punishable under Section 494 of the Indian Penal Code, 1860.

Finally, in Shayara Bano case (2017), the court invalidated instant Triple Talaq as violating fundamental rights of women. However, while all three rulings addressed the abuse of conversion or the mode of divorce, none tested the validity of polygamy itself under Articles 14, 15 and 16.

THE QUESTIONS THAT ARE LEFT UNANSWERED IN THE POLYGAMY CASE

In 2017, the Supreme Court bench refrained from ruling on polygamy and nikah halala, which is why the question returns to court now.

Once a Muslim woman has been divorced, her husband is not permitted to "take her back" even if he pronounces talaq under the influence of an intoxicant, unless his wife undergoes nikah halala. Under this practice, the wife must marry another man, who must subsequently divorce her so that her previous husband can remarry her.

In 2023, a Supreme Court bench composed of then CJI DY Chandrachud and Justices PS Narasimha and JB Pardiwala said it will constitute a fresh five-judge Constitution bench at an "appropriate stage" to take up petitions challenging the constitutional validity of polygamy and nikah halala among Muslims.

Following this, on August 30, a five-judge Constitution bench comprising Justices Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh, and Sudhanshu Dhulia issued notice on the petitions and made the National Human Rights Commission (NHRC), National Commission for Women (NCW) and National Commission for Minorities (NCM) parties to the matter, seeking their response.

Advocate Ashwini Upadhyay had put this plea, stating the injury caused to women by triple-talaq, polygamy and nikah halala is violative of Articles 14, 15 and 21 of the Constitution and injurious to public order, morality, and health. The plea sought direction to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional and violative of Articles 14, 15 and 21 insofar as it seeks to recognise polygamy and nikah halala.

"It is well-settled that common law has primacy over the personal laws. Hence, this court may declare that — Triple Talaq is cruelty under Section 498A of the IPC, 1860, nikah halala is rape under Section 375 of the IPC,1860, and polygamy is an offence under Section 494 of the IPC, 1860," his plea stated.

Also into question are Article 25 (guaranteeing freedom of conscience and religious practice, subject to public order, morality, health, and social reform), Article 44 (directing the State to secure a Uniform Civil Code as a Directive Principle), and Entry 5 of the Concurrent List in the Seventh Schedule (placing marriage and divorce under legislative competence of both Parliament and State legislatures).

QURAN PRESCRIBES MONOGAMY

A central theme before the Court is whether polygamy qualifies as an Essential Religious Practice (ERP) protected under Article 25. To cross the ERP threshold, a practice must be proved foundational to faith, such that its removal would alter the character of the religion itself.

Contrary to popular opinion, the Quran encourages monogamy and does not encourage polygamy. The legal challenge draws heavily on Quranic Hermeneutics, particularly Surah An-Nisa (4:3). Verse 3 of Surah Nisa states that if a man fears he will fail to maintain justice, he should content himself with one wife.

This verse was revealed when many men had multiple spouses running into three figures. Theological arguments presented in court emphasise that polygamy is merely a conditional permission tied to historical welfare contexts, such as supporting war widows and orphans, rather than a mandatory religious duty.

The Quran permits a man up to four wives in special circumstances and makes absolute financial and emotional equality between wives incumbent on the man. Because that is a practical impossibility, it asks men to desist from multiple marriages.

Notably, several Muslim-majority countries, including Turkey, Tunisia, Egypt, and Pakistan, have either outlawed polygamy outright or subjected it to severe judicial and administrative restrictions without compromising Islamic jurisprudence.

WHAT ARE THE PATHS BEFORE THE SUPREME COURT IN THE POLYGAMY CASE?

Much like the trajectory of the Triple Talaq case, current proceedings raise critical questions about institutional roles. The Supreme Court could declare polygamy and nikah halala unconstitutional by reading down the Shariat Act, 1937, to bring all citizens under the purview of BNS Section 82.

Alternatively, the court could issue directions to the Union Government to enact explicit legislation, mirroring the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalised instant Triple Talaq post-judgment.

As the Constitution bench prepares to hear arguments, the outcome will define boundaries between religious autonomy and state enforcement of gender justice. If the Supreme Court applies the same constitutional yardstick of dignity and non-arbitrariness that rendered instant Triple Talaq void, polygamy might well become the next custom to fall under judicial reform.

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