In a historic decision last month, the Supreme Court denied a Muslim man the right to have more than one wife and upheld his termination from employment for committing bigamy. The court observed that polygamy was not integral to Islam and the practice was not mandated by religion simply because it was permitted. Similarly, in 2005, the SC had boldly acknowledged that, despite codification and the introduction of monogamy, too many Hindu marriages, like Muslim marriages, continue to be bigamous. This latest SC decision is in line with the reform of Muslim personal law that it initiated three decades ago in the Shah Bano case.
In a catena of cases, the SC has held that the freedom of religion protects only those practices that constitute an “essential and integral part of religion”. Therefore, Muslim personal law can claim the protection of Article 25 only if it is established that marriage, inheritance and the other areas it covers are “essential and integral parts” of Islam. The bench was of the view that a Muslim [man] who wants to take more than one wife is engaged in neither professing and practising nor promoting and propagating his religion. Thus the SC rightly upheld service rules that mandated that a
n[male] employee can have only one wife. There is substance in the argument that though the basic source of Muslim law is the Quran and the traditions of the Prophet, the relations it regulates are not religious. They are, on the contrary, social relations well within the province of the state. Therefore, Muslim polygamy has no religious motivation.
That’s an interesting distinction. I think it’s a good one, but it’s one that I think judges in the US would shy away from making…because it would entangle them in theological judgments that aren’t their province. That tends to mean that religious people have a lot of latitude to claim that this thing they want to do is a core religious belief. We’ve seen how that plays out.