## Facts

- In 1951, Israel enacted § 8(a) of the Law on Equal Rights for Women, which revoked § 181 of the Criminal Law Ordinance (a Mandatory-era provision addressing bigamy and related exceptions).
- Section 181 had defined bigamy as a criminal offense but had also included a retroactive exception for certain existing marriages performed under the law of another jurisdiction that permitted bigamy.
- The Law on Equal Rights for Women also included § 5, stating that the law was “not meant to impair the laws on what is prohibited and what is permitted as to marriage and divorce.”
- Mulhem Naif Mulhem, a Sunni Muslim, was already married to one woman and sought to contract an additional marriage through the Shari’a court in Akko.
- The Qadi of Akko refused to perform the marriage ceremony, explaining that Israeli law prohibited polygamy.
- Mulhem petitioned the High Court of Justice, arguing that barring Muslims from taking multiple wives would violate freedom of religion and that §§ 5 and 8 of the Law on Equal Rights for Women were inconsistent.

## Issues

1. Whether, after § 8(a) of the Law on Equal Rights for Women revoked § 181 of the Criminal Law Ordinance, Israeli law prohibited polygamous marriage so that a qadi could refuse to perform a second marriage for a man already married.
2. Whether § 5’s saving clause (stating the law does not impair rules of what is permitted or prohibited in marriage and divorce) required allowing polygamy under Muslim religious law notwithstanding the statutory change to the criminal law.
3. Whether freedom of religion required the state (or a religious-court judge acting under state authority) to permit or facilitate a polygamous marriage.

## Decision

- The High Court of Justice denied the petition and upheld the qadi’s refusal to perform the requested marriage ceremony.
- The Court treated the statutory revocation of § 181 as removing the legal basis for any exception that would allow or recognize polygamy in a way that would permit a second marriage to be carried out under the authority of a state-recognized tribunal.
- The Court rejected the claim that § 5 compelled an interpretation that preserved polygamy; the saving clause did not negate the legislature’s express change to the criminal-law regime.
- The Court declined to order a religious judge to perform an act that would conflict with governing Israeli law, and it did not accept freedom of religion as a basis to require facilitation of polygamy in these circumstances.

## Legal Principles

- When the legislature expressly revokes a provision in the criminal law, courts apply the revocation according to its terms; a general saving clause in the same statute does not cancel or neutralize an explicit repeal affecting criminal liability.
- A clause stating that a statute is not intended to impair religious rules of marriage and divorce may preserve the operation of religious personal-status norms as such, but it does not automatically preserve conduct the legislature has placed under a general criminal prohibition.
- Religious tribunals and officials functioning within a state legal system remain subject to statutory limits; a court will not compel an official act that would be inconsistent with the state’s criminal law.
- Freedom of religion does not necessarily require the state to authorize or carry out religious practices when the legislature has prohibited the conduct through generally applicable law.

## Conclusion

Mulhem Naif Mulhem held that, following the 1951 Law on Equal Rights for Women’s revocation of § 181 of the Criminal Law Ordinance, a qadi could refuse to perform a second marriage for a man already married because Israeli law prohibited polygamy; the statute’s saving clause regarding marriage and divorce did not override the express change to the criminal law, and freedom of religion did not entitle the petitioner to have the state-recognized religious court facilitate a polygamous marriage.


Mulhem Naif Mulhem v. Qadi of Akko, HCJ 49/54, 8 PD 910 (1954)