The Gujarat High Court on Thursday ruled that Section 494 of the Indian Penal Code against re-marriage during the lifetime of husband or wife could not be enforced on Muslim men marrying under the Shari'ah.
The high court order came on a petition filed by one Sajida Bano of Saurashtra region's Bhavnagar city in the state against her husband Zafar Abbas invoking Section 494 of the IPC.
Zafar Abbas, who hails from Chhattisgarh, had in 1991 re-married without divorcing his first wife Sajida. She had moved a local court in Bhavnagar against her husband's second marriage and got an order in her favour. Abbas challenged the lower court's decision in the high court.
Since the matter involving Islamic personal law was sensitive, the high court appointed an amicus curie for assistance. The amicus curie consulted Islamic as well as legal experts and recorded various judgments on the issue by different high courts in the country and the Supreme Court before submitting its findings to the Gujarat High Court.
The amicus curie also took into account a February 25 verdict by a division bench of the Kerala High Court that held that Section 494 of the IPC was applicable to all offenders, irrespective of their religion but was subject to personal laws.
The Kerala apex court had observed that the offence did not discriminate between an offender, either male or female, belonging to the Hindus, Muslims or Christian communities while lodging a case of bigamy if a marriage was legal and valid.