The Allahabad High Court has held that a second marriage performed by a Muslim male during the subsistence of the first marriage is not void under Section 494 IPC unless it is declared Batil (void) by a competent court such as the Family Court under Section 7 of the Family Courts Act, 1984. The Court stayed coercive action against the applicants in a pending criminal case involving charges including bigamy, cheating, and criminal conspiracy.
Background
The application was filed under Section 528 of the BNSS by Furkan and two others seeking quashing of Charge Sheet No. 318/2020 dated 08.11.2020 and the consequent cognizance and summoning orders in Criminal Case No. 17364 of 2021 (State of U.P. vs. Furkan & others), arising out of Case Crime No. 5 of 2020 under Sections 376, 495, 120-B, 504, 506 IPC.
The applicants contended that the first marriage of applicant no.1 was solemnized under Muslim law, and the subsequent marriage with the complainant, also a Muslim woman, was valid under the Mohammedan Law which permits up to four marriages.
Applicants’ Arguments
Counsel for the applicants argued:
- Under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, marriage among Muslims is governed by Muslim Personal Law, which permits polygamy under certain conditions.
- Section 494 IPC applies only if the second marriage is void. Since polygamy is permitted under Muslim law, a second marriage in this context is not void.
- They relied on Supreme Court decisions in Smt. Sarla Mudgal v. Union of India (1995), Lily Thomas v. Union of India (2000), and Dr. Surajmani Stella Kujur v. Durga Charan Hansdah (2001), highlighting that criminal liability under Section 494 IPC arises only when the second marriage is void.
- The Bombay High Court judgment in Kalim Shaikh Munaf v. State of Maharashtra was also cited, reaffirming that second marriages under Muslim law are not void per se.
State’s Response
The Additional Government Advocate contended:
- The second marriage must comply with the requirements of Muslim law. If the first marriage was under another personal law or statutory framework (e.g., Hindu Marriage Act), the second marriage could be void.
- The validity of the second marriage can be assessed under paragraph 40 of Jafar Abbas Rasoolmohammad Merchant v. State of Gujarat (2015), which outlines exceptions to permissible polygamy.
- The issue of the constitutional validity of the Shariat Act is pending before the Supreme Court in Ashwini Kumar Upadhyay v. Union of India, W.P. No. 202/2018.
Court’s Analysis
Justice Arun Kumar Singh Deshwal observed:
- Section 494 IPC requires that the second marriage be void for the offence of bigamy to apply. Under Muslim law, a second marriage is not void unless declared Batil (void) under Shariat principles.
- The Family Courts Act, 1984, overrides other laws and empowers Family Courts to decide on the validity of marriages under all personal laws, including Muslim law.
- The Quran permits polygamy conditionally, requiring equitable treatment of all wives. Abuse of this provision for self-interest is against Islamic teachings.
The Court stated:
“Even for Section 494 IPC or for other purposes, questions relating to the validity of marriage as per Section 2 of the Shariat Act can be decided by the Family Court under Section 7 of the Family Courts Act.”
The Court laid down three key principles:
- A Muslim male’s second marriage is not void if the first marriage was under Muslim law and the second has not been declared Batil by a competent court.
- If the first marriage was under statutes like the Hindu Marriage Act, and the second marriage is performed after conversion to Islam, the second marriage would be void and punishable under Section 494 IPC.
- Family Courts have jurisdiction to determine the validity of Muslim marriages under Section 7 of the Family Courts Act.
Decision
The High Court observed that since both parties were Muslims and the second marriage was not declared void, the offence under Sections 376, 495, and 120-B IPC was not made out.
The Court issued notice to the complainant (opposite party no. 2) and directed that:
“Till the next date of listing, no coercive action shall be taken against the applicants.”
The matter is scheduled for hearing in the week commencing May 26, 2025.
