The ‘essential religious practice’ pathway

Although Narasu concerns the fundamental-rights status of personal laws, courts have consistently held that practices not deemed essential to a religion do not enjoy constitutional immunity from State regulation. Even without resolving the Article 13 question, judicial decisions have repeatedly held that specific practices associated with personal law must satisfy the constitutional tests under Article 25. This has allowed courts to assess practices such as polygamy on the touchstone of the essential religious practice doctrine.

Illustratively, in Mohd. Hanif Quareshi v. State of Bihar (1958), the Supreme Court upheld a total ban on cow slaughter rejecting the argument that it interfered with religious practices of Muslims. The Court held that sacrificing a cow on Eid was not an obligatory act, and hence not constitutionally protected. This logic has since been applied to religious practices, permissible but not mandatory, to decide whether they warrant constitutional protection. The Gujarat High Court in R.A. Pathan (1980) concluded that a bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and rejected the claim that bigamy enjoys protection under Articles 25.

In Javed v. State of Haryana (2003), the Supreme Court upheld a law disqualifying individuals with more than two children from contesting panchayat elections. The petitioners argued that Islam permitted polygamy and large families. The Court observed:

“The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. In our view, the question of the impugned provision of Haryana Act being violative of Article 25 does not arise.”

Similarly, in Khursheed Ahmad Khan v. State of U.P. (2015), the Supreme Court held that personal law practices like polygamy can be regulated in the interest of public welfare and gender justice as they are not essential practices.

In a recent Kerala High Court ruling, Justice P.V. Kunhikrishnan analyzed Quranic texts to assert that Islam permits polygamy only in strict conditions, notably, the ability to treat all wives with equal fairness. The Court noted that the true spirit of Islamic law leans toward monogamy and that polygamy is a rare exception, not a rule. It reminded the state of its duty to protect women trapped in exploitative marriages and to counsel men unfit to support multiple spouses. These decisions collectively form a robust constitutional basis for states like Assam and Uttarakhand to legislate bans on polygamy, even among Muslims.

The Bharatiya Muslim Mahila Andolan, an autonomous rights-based mass organisation, in its study released in December 2022, which covered women in polygamous households across eleven states, revealed that 84 percent of respondents believed polygamy should be prohibited, and 73 percent felt that husbands who marry again should face legal penalties. Nearly 45 percent reported that their husbands threatened divorce if they objected to a second marriage, illustrating the coercive environment in which the practice often operates. The overwhelming majority described experiencing betrayal, loss of dignity, and erosion of self-respect when their husbands took additional wives. The report further noted that half of the 289 women surveyed suffered from severe mental trauma, including depression.

Religion

Secularism in India is a foundational constitutional norm, not a postscript to the Preamble

Secularism in India is a foundational constitutional norm, not a postscript to the Preamble

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