Dismissing an anticipatory bail application moved by a maulvi, accused of forcing a young Muslim girl into a wedding with a married man who allegedly raped her subsequently, a sessions court here has slammed the cleric’s attempt to take refuge in religious tenets to justify his act.

While the prosecution said the maulvi forcibly performed the nikah, the maulvi claimed that the Shariah permitted a Muslim to keep four wives at a time and that the girl consented to the marriage.

However, Additional Sessions Judge Kamini Lau noted that the girl had not signed the marriage certificate. Her parents were not present, nor were there any witnesses. Further, the girl escaped from the man, who allegedly raped her after serving her intoxicants, the same day. The maulvi getting a stamp paper for the girl to sign purportedly consenting to the marriage was prima facie a “cover-up operation” on his part for indemnity from legal consequences and awareness of his committing an illegal act, the judge said.

Majesty of law prevails

On the Maulvi taking recourse to Shariah to justify polygamy, Ms. Lau said: “The Indian legal system provides sufficient space for religious freedom but whenever any such regressive religious practice come into conflict with the rights of the citizens as enshrined in the Indian Constitution, it becomes obligatory for courts to ensure that it is the majesty of law and the constitutional mandate which prevail.”

The judge also noted the maulvi’s failure to get the consent of the first wife of the man and to ascertain if he was capable of financially supporting both wives and their children.

Ms. Lau said: “Jurists are unanimous that in Islamic societies polygamous marriages are permitted but only in certain circumstances, that is primarily in situations where a man's death has left his widows with no means or support… Polygamy is neither mandatory nor encouraged but merely permitted. The Koran’s conditional endorsement stresses that self-interest or sexual desire should not be the reason for entering into a polygamous marriage. It is a practice associated with the social duty of Islamic men to protect the social and financial standing of widows and orphans in their community.”

On the responsibilities of clerics, the judge said: “It is equally the duty of the religious heads, priests, maulvis and all those involved in propagating religion to ensure that the religious texts are progressively interpreted and to confirm that it is only those beneficial practices which are in the best interest of all sections of humanity which are encouraged and observed. However, it pains me to observe that instead, some of these religious heads/priests like the accused are often found to be indulging [in] and encouraging practices which are derogatory and regressive to women (particularly those belonging to the poor sections) which they do with impunity by seeking the cover of religion.”

The judge added: “Any person who is found indulging in such activities which are a moral, social and legal wrong and who exploits a woman by taking refuge in religion has to be taken to task.”