The issue of Polygamy has been a point of contention and heated discussions in India. A panel led by a retired High Court Judge in Assam has recently recommended that the Assam government ban polygamy.
Following this recommendation, Assam is planning to introduce a law prohibiting polygamy within the current financial year. Assam’s Chief Minister, Himanta Biswa Sarma, announced on August 6 that the Expert Committee assigned to assess the legislative competence of the State Legislature to eradicate polygamy has submitted its report.
Polygamy, a practice that’s deeply rooted in certain cultural and religious practices, has been identified as problematic due to its potential to disrupt gender equity and justice.
Polygamy is defined as the practice of having multiple spouses at the same time. The subject of polygamy is also a recurring theme in the ongoing discussions surrounding the Uniform Civil Code (UCC) in India.
Laws To Ban Polygamous Practices In India
In the past, India had a broad acceptance of polygamy, but the scenario changed with the introduction of certain legal regulations. The Hindu Marriage Act of 1955, for instance, prohibited polygamy among Hindus, and parallel laws were enacted for Sikhs, Jains, and Buddhists to ensure standardised marital customs within these communities.
The Special Marriage Act of 1954, which regulates interfaith marriages, has also outlawed polygamy. However, an exception is made for Muslim individuals, for whom the practice is allowed under the Shariat Protection Act. Many tribal communities in India also follow polygynous marital customs.
There have been instances where people have changed their religion to Islam to get married again, without legally ending their first marriage.
The Supreme Court, in its Sarla Mudgal judgment in 1994, declared such conversions and subsequent marriages void. This ruling was further upheld in the Lily Thomas v. Union of India case.
These decisions underscore the principle that religious liberty can’t be misused to skirt laws prohibiting polygamy, emphasising that before converting and remarriage, the legal termination of the first marriage is mandatory.
The Personal Laws
- According to the Special Marriage Act of 1954, it is mandatory for both parties to not have a living spouse at the time of marriage.
- The Hindu Marriage Act of 1955 prohibits polygamy, specifically the practice of a man having multiple wives.
Although bigamy is considered a criminal offence, the child born from such a marriage would still be entitled to the same rights as a child from the first marriage, as dictated by the law. - Buddhists, Jains, and Sikhs are also included under the Hindu Marriage Code.
- The Parsi Marriage and Divorce Act of 1936 had already prohibited the practice of bigamy.
- Under Islamic law, the institution of marriage is regulated by the Shariat Act of 1937. According to this act, Muslim men have the option to enter into polygamous marriages, allowing for the possibility of having up to four wives.
The Indian Penal Code (IPC)
IPC Section 494 (“Marrying again during lifetime of husband or wife”) penalises bigamy or polygamy with imprisonment up to 7 years and fine.
This provision does not apply –
- To a marriage which has been declared void by a court.
- If a spouse has been “continually absent” for the “space of seven years”.
- For adulterous relationships that do not qualify as valid marriages under the law.
- Section 495 of the IPC protects the rights of the second wife in case of a bigamous marriage.
- A person who commits the offence described in Section 494 and deliberately conceals their previous marriage from the individual they subsequently marry shall be subject to imprisonment for a maximum of 10 years and a fine.
Social And Legal Consequences Of Polygamy
- Polygamy is a complex social and legal issue. It often puts the second wives and their children in disadvantageous situations.
- These affected individuals usually face challenges in claiming their legal rights, such as maintenance and inheritance.
- This marriage practice can lead to legal uncertainties and social conflicts.
- In March 2023, a legal review of polygamy and nikah halala was proposed by Ashwini Upadhyay.
- The proposal was acknowledged by a bench led by Chief Justice DY Chandrachud, along with Justices PS Narasimha and JB Pardiwala.
- The Chief Justice stated that the issue would be considered and a Constitution bench would be formed when necessary.
- This could be a step toward India’s ambition to promote gender equality and protect women’s rights.
Polygamy And Gender Justice
- Polygamy often puts women at a disadvantage in their relationships. It promotes a culture that is misogynistic and can limit women’s freedoms.
- Certain scholars argue that the practice of polygamy grants men the privilege of having multiple wives, while women are restricted to a sole husband. This arrangement inevitably leads to a power imbalance and an unequal distribution of resources.
- Furthermore, societal norms exacerbate this power dynamic by placing disproportionate burdens on women in terms of familial responsibilities, even when they aspire to pursue employment outside the confines of their homes.
- Feminist scholars contend that polygamy reinforces the perception of women as inferior to men and perpetuates their subjugation.
- Polygamy not only undermines women in their sexual relationships but also perpetuates a culture of misogyny. It is seen as a manifestation of male privilege and exertion of control over women’s lives.
- Banning polygamy could help to maintain societal progress toward equality and justice, and it aligns with the philosophies that advocate freedom, equity, and respect for all individuals.
- The goal of an equitable society requires a reassessment of practices like polygamy that hinder progress and undermine the principle of equal rights.
- Many contemporary scholars view polygamy negatively, and there is a societal trend away from its practice. They point out many potential negative impacts of polygamy.
- Polygamy also has economic, psychological, and social impacts that highlight these inequalities, often creating unstable and unfair situations for women.
- Influential philosophers like John Stuart Mill and Simon de Beauvoir provide frameworks for understanding the issues with polygamy.
- Beauvoir, a feminist philosopher, argued for women’s liberation from oppressive societal structures. This philosophy is directly opposed to practices like polygamy, which limit women’s agency.
- Mill, who strongly advocated individual freedom, highlighted that such freedom should be limited when it harms others. This is a key issue with polygamy, which often leads to harm through imbalances of power and gender inequality.
The Extent Of Polygamy In India’s Various Communities
- Although practised by select groups, polygamy is not widely prevalent in India, as indicated by the National Family Health Survey-5. The survey reveals that the incidence of polygamy stands at 2.1% among Christians, 1.9% among Muslims, 1.3% among Hindus, and 1.6% among other religious communities.
- The declining prevalence rates reflect a broader societal shift away from this practice, indicating that a ban may align with evolving social attitudes.
- Data from the National Family Health Survey (NFHS-5) indicates that polygamy is more common in tribal areas, the poorest households, and among those with less education.
- The highest rates of polygamy are reported among India’s Scheduled Tribes (STs).
- Polygamy rates vary among social groups: 2.4% in STs, 1.5% in SCs, 1.3% among OBCs, and 1.2% among others.
Within the ST community, polygamy has decreased from NFHS-3 (3.1% in 2005-06) to NFHS-4 (2.8% in 2015-16), and again to NFHS-5 (2.4% in 2019-21). - Although polygamous marriage is illegal for most communities in India, it’s still practised in certain sections of society.
The overall prevalence of polygamous marriages in India was quite low, at 1.4% in 2019-21, and has been decreasing over time.