Mulhem Naif Mulhem v. Qadi of Akko
Israel Supreme Court
HCJ 49/54, 8 PD 910 (1954)
- Written by Whitney Waldenberg, JD
Facts
In 1951 Israel enacted § 8(a) of the Law on Equal Rights for Women. Section 8(a) revoked § 181 of the Criminal Law Ordinance, which was enacted during the time of the British Mandate. Section 181 defined bigamy as a crime but made a retroactive exception for existing marriages that had been performed under the law of another jurisdiction that permitted bigamy. Section 5 of the Law on Equal Rights for Women also provided that “[t]his law is not meant to impair the laws on what is prohibited and what is permitted as to marriage and divorce.” Mulhem Naif Mulhem (plaintiff), a Sunni Muslim, was already married to one woman and sought a marriage ceremony through the qadi of Akko (defendant), who was the judge from the Muslim court. The qadi refused to perform the marriage, stating that Israeli law prohibited polygamy. Mulhem filed a petition with the court, arguing that the prohibition on multiple wives to Muslims would be an infringement of freedom of religion, and he further argued that §§ 8 and 5 of the Law on Equal Rights for Women were inconsistent in that § 5 plainly stated that the law was not intended to impair the laws on what is permitted in marriage.
Rule of Law
Issue
Holding and Reasoning (Silberg, J.)
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