Friday, November 6, 2015

Muslims can’t be booked for polygamy, rules Gujarat High Court

The court was of the opinion that in absence of a uniform civil code having more than one wife is not an offence in the Muslim community. It, however, observed polygamy “is an exception and not a rule.”

Gujarat High Court.
The Gujarat High Court on Thursday held that Muslims cannot be booked for an offence of polygamy under the Indian Penal Code (IPC) as it is permissible in the Islamic laws.
The court was of the opinion that in absence of a uniform civil code having more than one wife is not an offence in the Muslim community. It, however, observed polygamy “is an exception and not a rule.”
The order came on a plea moved by one Jafar Abbas Rasoolmohammad Merchant, a resident of Raipur. He had sought quashing of an FIR lodged on the basis of a complaint by his first wife Sajedabanu, a native of Bhavnagar. She had left her husband in 2001 after a dispute.
The petitioner later married another woman, after which Sajedabanu filed a complaint with Bhavnagar Mahila police station. The FIR was lodged against the petitioner under various sections of the IPC, including 494 (bigamy) and 498A (dowry harassment and domestic violence). Sajedabanu lodged the case against her husband saying that she was never divorced and, therefore, by marrying another woman he committed an offence of bigamy.
Merchant moved a petition before the High Court in 2010 for quashing of the FIR, saying that Section 494 of the IPC is not applicable since bigamy is permitted in Islam. He also prayed that he cannot be booked in Bhavnagar, since the alleged offence was committed in Raipur.
Justice J B Pardiwala directed police to remove Section 494 from the FIR. The judge referred to several judgments of the Supreme Court stating that in absence of a uniform civil code, the petitioner can’t be booked under the Section 494 of the IPC.
During the arguments, advocate MTM Hakim, who was appointed as amicus curiae in the case, had pointed out that under Muslim laws, the second marriage cannot be held void.
The court, however, observed, “…notwithstanding there is no codification by the legislation of marriages amongst the Muslim, polygamy is not encouraged and is an exception and not a rule.”
Justice Pardiwala further said the offence under Section 498A of the IPC is a continuing offence, “and if the act of cruelty continues, even while the woman is living at her parents’ house, the offence is triable by both the Courts in whose territorial jurisdiction the acts of cruelty have been committed.”
The court said: “Sajeda was subjected to cruelty at her matrimonial house … (and) forced to live with her parents and brother at Bhavnagar. Sajeda had been left with no other option… and in any case, if she was asked to prosecute her case under Section 498A of the IPC at her matrimonial home, it would amount to deprivation of her right to prosecute the case, since, as a deserted lady, she would not be able to prosecute her case properly there.”
- See more at: http://indianexpress.com/article/cities/ahmedabad/gujarat-hc-muslims-cant-be-booked-for-polygamy/#sthash.QBd5UjYh.dpuf

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